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\ — — riiiiiiiimmiiiMiiiiiiiÉiiiiMtiaiiHiiiiiimiiiiiiiiiMiiiiMniiii 

HENEW  GERMAN 
CONSTITUTION 

René  Brunet 


The  German 
Constitution 


SOME  RECENT  BORZOI  BOOKS  OF  INTEREST 
TO  POLITICAL  SCIENTISTS 


QUANTITATIVE  METHODS  IN  POLITICS 
By  Stuart  A.  Rice 

AMERICAN    GOVERNMENT    AND   CITIZENSHIP 
By  Charles  E.  Martin  and  William  H.  George 

READINGS  IN  AMERICAN  GOVERNMENT 
By  Finla  G.  Craicford 

THE  PROBLEM  OF  GOVERNMENT 
By  Chester  C.  Maxey 

PARTY  CAMPAIGN  FUNDS 
By  James  K.  Pollock,  Jr. 

THE  SCIENCE  AND  METHOD  OF  POLITICS 
By  G.  E.  G.  Catlin 


The  New 

German  Constitution 


by 
René    Brunei 

Professor  of  Constitutional  Law  in  the  Faculty  of  Law  at  the   University 
of  Caen,  formerly  legal  advisor  to   the  French  Embassy  at  Berlin 

Translated  from   the  French  by  Joseph  Gollomb 

Foreword  by  Charles  A.  Beard 


New  York        '^^-- ^''       Mcmxxviii 

Alfred    • A    •    Knopf 


COPYRIGHT     1922     BY     A  L  F  R  E  D  •   A   •   K  N  O  P  F  ,     INC 


Published  April,  1912 
Second  Printing  April,  1928 


Set  up  and  electrotyped  hy 

J.  J.  Ives  Co.,  New  York 

Printed  hy  the  Vail-Ballou  Press, 

Binghamton,  N.  Y. 

Bound  hy  the  H.  Wolff  Estate, 

New  York 

Paper  manufactured  by 

W.  C,  Hamilton  d  Sons,  Miquon,  Pa. 


MANUFACTUEED    I W    THE    UNITED     STATES    OP    AMEBICA 


6^ 


FOREWORD 


It  is  a  pleasure  to  introduce  M.  Brunet  to  the  American 
public.  He  is  a  French  scholar  of  the  finest  type,  careful,  ob- 
jective, and  sincere.  The  present  work  on  the  German  con- 
stitution bears  the  impress  of  these  high  qualities.  In  this 
volume  we  find  the  scientific  spirit  that  was  to  be  expected, 
combined  with  an  intimate,  first-hand  knowledge  of  the  forces 
and  materials  which  are  described.  All  this  is  very  signifi- 
cant. The  long  night  of  the  Great  War  was  hardly  over  be- 
fore M.  Brunet  began  an  impartial  and  thorough-going  study 
of  the  state  of  affairs  created  in  Germany  by  the  revolution 
of  November,  1918.  If  a  Frenchman  who  suffered  so  much 
can  display  such  good  sense  and  sobriety,  then  surely  Ameri- 
can scholars  ought  to  give  more  than  a  hearty  welcome  to  this 
volume.  It  is  an  excellent  beginning  in  the  reconstruction  of 
the  republic  of  letters. 

In  this  book  we  have  a  plain  and  simple  account  of  the 
German  revolution  and  the  conflict  of  forces  which  ended  in 
the  establishment  of  the  republic.  The  balance  of  parties  is 
examined.  The  results  of  the  elections  to  the  national  as- 
sembly are  summarized.  Then  follows  a  systematic  analysis 
of  the  new  plan  of  government,  illuminated  by  continual  ref- 
erence to  the  concrete  historical  circumstances  in  which  the 
makers  of  the  German  constitution  had  to  operate, 

M.  Brunet  has  tried  to  steer  his  way  on  an  even  keel  be- 
tween the  highly  theoretical  methods  of  the  German  political 
philosophers  and  the  hard,  matter-of-fact  methods  of  the 
Anglo-Saxons.  He  has  succeeded  admirably.  Accordingly, 
the  usefulness  of  his  volume  extends  beyond  the  information 
which  it  presents.  It  affords  an  interesting  model  to  young 
American  writers  who  have  occasion  to  deal  with  constitu- 


vi  FOREWORD 

tional  and  legal  matters.  There  is  no  reason  why  a  doctor  of 
philosophy  should  not  love  insight  and  form  as  much  as  the 
poet  does.  The  great  English  doctor  of  law,  Maitland,  cer- 
tainly did. 

M.  Brunet's  excellent  qualities  have  enabled  him  to  write 
the  best  treatise  on  the  German  constitution  which  exists  in 
any  language.  Any  one  who  will  spend  a  day  comparing  this 
volume  with  Dr.  Fritz  Stier-Somlo's  Die  Verfassung  des 
Deutschen  Reichs  vom  11,  August,  1919,  for  example,  will  soon 
discover  how  much  more  ingenious  and  penetrating  is  the 
French  commentator.  M.  Brunet's  volume  is  to  be  commended 
on  other  grounds  than  those  of  intrinsic  excellence.  It  brings 
information  to  the  American  public  on  a  subject  concerning 
which  very  little  is  known  at  present.  The  new  German  con- 
stitution has  been  translated  into  English  and  there  are  a  few 
stray  articles  by  the  way  of  commentary  available  to  Ameri- 
cans, but  this  is  the  first  systematic  treatise  on  the  topic  in 
our  tongue. 

It  would  not  be  fitting  to  give  in  this  foreword  a  résumé  of 
M.  Brunet's  volume.  The  admirable  survey  presented  in  the 
analytical  table  of  contents  can  be  seen  at  a  glance.  It  may 
not  be  out  of  place,  however,  to  indicate  some  points  of  con- 
tact between  the  present  course  of  American  thinking  and  the 
system  of  government  here  described.  Notwithstanding  the 
curious  constitution  worship  that  flourishes  in  many  places  in 
the  United  States,  there  are  signs  of  fresh  currents  of  thinking, 
Mr.  Woodrow  Wilson,  in  his  remarkable  essay,  Congressional 
Government,  set  in  train  new  opinions  as  to  our  constitutional 
system  which  have  by  no  means  been  lost  to  view  in  the  gen- 
eral revulsion  of  feeling  that  followed  the  war.  Only  recently 
Professor  Lindsay  Rogers,  of  Columbia  University,  took  occa- 
sion to  remark,  in  the  course  of  an  interesting  article  on  mod- 
ern French  politics,  that  we  ought  to  have  a  more  lively  and 
intelligent  discussion  of  constitutional  questions  in  America. 
The  ink  was  hardly  dry  on  his  paper  before  Professor  William 
Macdonald  accepted  the  challenge  by  bringing  out  his  highly 


FOREWORD  vii 

suggestive  book,  entitled  A  New  Constitution  for  a  New 
America. 

The  rhythm  of  human  affairs  is  such  that  we  may  reason- 
ably expect  a  return  to  the  constitutional  searchings  of  1912 
on  a  higher  and  different  plane.  Those  who  fix  their  eyes 
not  upon  the  written  letter  of  our  Constitution,  but  upon  judi- 
cial decisions,  political  practice,  and  congressional  procedure 
are  never  under  the  delusion  that  our  constitutional  system 
does  not  change.  If,  as  Professor  Seligman  long  ago  pointed 
out,  economic  conditions  are  rapidly  becoming  the  same  all 
over  the  world  with  similar  legal  results,  then  we  may,  with 
proper  warrant,  expect  very  soon  a  new  and  lively  examina- 
tion of  constitutional  principles  to  break  in  upon  us.  M. 
Brunet's  book  fits  in  with  the  signs  of  the  times.  No  person 
who  pretends  to  be  intelligent  about  constitutional  matters 
can  neglect  it. 

It  would  be  difl5cult  to  imagine  anything  more  illuminating 
than  a  comparison  of  the  Constitution  of  the  United  States 
drawn  up  in  1787,  the  fundamental  law  of  the  Australian 
Commonwealth  adopted  in  1900,  and  the  new  German 
Reichsverfassung  of  1919,  which  vibrates  with  the  tramp  of 
the  proletariat.  In  the  attempt  of  the  Germans  to  combine 
the  strength  of  Hamilton's  government  with  the  democratic 
control  so  vaunted  by  Jefferson  we  have  an  experiment  that 
ought  to  stir  our  deepest  interest.  In  the  provisions  for  social, 
not  to  say  socialistic,  enterprise,  both  the  Australian  and  the 
German  constitutions  offer  noteworthy  contrasts  to  our  own 
fundamental  law.  It  will  not  escape  the  close  observer  that 
the  Germans  have  not  created  a  supreme  court,  on  the  model 
of  our  own,  endowed  with  power  to  set  aside  acts  of  the 
executive  and  legislative  branches  of  the  government.  The 
relations  established  by  the  Germans  between  the  federal 
government  and  the  states,  ingenious  compromises  all  must 
admit,  ought  to  be  studied  in  connection  with  Mr.  Roosevelt's 
"New  Nationalism" — not  as  an  echo  of  a  dead  past  but  as  a 
prophecy  of  the  future. 


via 


FOREWORD 


The  science  of  comparative  government  is  as  fruitful  to-day 
as  it  was  a  generation  ago  when  it  flourished  in  such  vigour. 
A  teacher  who  will  place  M.  Brunet's  book  and  "The  Federal- 
ist" in  the  hands  of  a  college  class  cannot  fail  to  evoke  a  lively 
interest  in  politics  and  a  more  intelligent  consideration  of 
American  constitutional  problems. 

To  the  historian,  the  introductory  part  of  M.  Brunet's 
volume  will  afford  food  for  thought.  There  is  no  doubt  that 
the  new  German  constitution  is  the  product  of  a  sharp  and 
determined  conflict  of  classes.  M.  Brunet  records  the  fact  and 
gives  the  alignment  of  parties.  No  sophisticated  person  will 
ever  imagine  (whatever  he  may  say)  that  the  German  funda- 
mental law  was  drawn  from  abstract  political  thinking,  theo- 
ries about  the  rights  of  states,  or  reflections  on  the  fate  of 
Greek  democracies  and  ancient  Rome.  The  pressure  of  class 
interests  is  evident  in  almost  every  line.  If  one  should  imder- 
score  the  socialist  sections  with  red,  the  Centre  clauses  with 
yellow,  and  the  capitalist  phrases  with  black,  one  would  have 
an  interesting  study  in  constitutional  artistry.  From  time  to 
time,  M.  Brunet  makes  specific  references  to  the  precise  effect 
of  party  pressures  upon  legal  phraseology.  It  would,  how- 
ever, be  a  work  of  supererogation  to  point  out  to  American 
scholars  the  relevancy  of  these  passages.  Having  recovered 
from  the  shock  of  learning  that  the  Fathers  of  our  Constitu- 
tion were  made  of  mortal  clay,  they  are  prepared  to  receive 
M.  Brunet's  book  with  open  minds. 

My  hearty  thanks  are  due  to  Mr.  Knopf,  who,  on  my  sug- 
gestion, undertook  to  make  this  volume  available  to  the  Ameri- 
can public.  I  am  indebted  to  Professors  Munro  and  Hol- 
combe  for  the  right  to  use  their  translation  of  the  "Constitu- 
tion of  the  German  Commonwealth"  issued  by  the  World 
Peace  Foundation.  Especially  am  I  under  obligation  to  Mr. 
Joseph  Gollomb  for  undertaking  the  translation  of  M.  Brunet's 
text.  Mr.  Gollomb  was  himself  a  witness  at  many  of  the 
scenes  described  in  these  pages.  He  has  first-hand  knowledge 
of  European  politics.    His  long  residence  in  Paris  gave  him  a 


FOREWORD  ix 

mastery  of  the  French  tongue.  In  making  this  English  version, 
he  has  kept  in  mind  the  requirements  of  the  general  reader 
as  well  as  those  of  technical  students. 

Charles  A.  Beajsd. 
New  Milford,  Conn., 

December  14, 1921. 


CONTENTS 


Foreword 


CHAPTER  I 

THE  ORIGINS 

Section  1 

THE   revolution 

The  Constitution  of  April  16,  1871,  and  the  reforms  of 

October,  1918  1 

The  fall  of  the  old  régime  12 

The  republic  of  councils  16 

Section  2 

the  national  constituent  assembly 

The  composition  of  the  Assembly  24 

The  Provisional  Constitution  of  February  10,  1919  28 

The  adoption  of  the  Constitution  and  supplementary  laws      35 


CHAPTER  II 

TOWARD  A  UNIFIED  STATE 

Section  1 

territorial  status  of  the  states 
The  problem  of  the  dismemberment  of  Prussia  43 

Modifications  of  the  territories  of  states  53 

The  creation  of  a  state — Thuringia  67 


ni  CONTENTS 

Section  2 
division  of  power  between  the  reich  and  the  states 

The  constitution  of  the  stat€s  69 

The  legislative  power  of  the  Reich  61 

(1)  Fundamental  linaits  of  power  61 

(2)  Supremacy  of  national  over  state  laws  65 
Administrative  services  of  the  government  65 
Justice  and  the  High  Court  68 

Section  3 

JURIDICAL  AND   POLITICAL   STRUCTURE  OF   THE  REICH 

Is  the  Reich  a  federal  state?  69 

Prussia  and  the  Reich  72 

CHAPTER  in 

THE  DEMOCRATIC  PRINCIPLE 

Section  1 

THE  principle 

The  power  of  the  state  is  derived  from  the  people  75 
The  system  of  councils,  or  the  dictatorship  of  the  pro- 
letariat 77 
The  Chamber  of  Labour,  or  the  Vocational  Parliament  82 
The  Political  Activity  of  the  Unions  91 

Section  2 
the  applications 

The  republic  98 
Universal  suffrage,  the  political  parties  and  the  electoral 

law  100 

General  principles  103 

The  electorate  and  eligibility  109 

Preparations   for  elections  112 

Distribution  of  seats  113 

The  actual  working  of  the  law  115 

Direct  government  118 


CONTENTS  xiii 

CHAPTER  IV 

PARLIAMENTARY  GOVERNMENT 

Section  1 

the  reichstag 

Privileges  and  guarantees  accorded  to  the  Reichstag  131 

The  rules  of  the  Reichstag  135 

The  duration  of  the  powers  of  the  Reichstag  137 

Powers  of  the  Reichstag  138 

1.  Powers  of  the  Reichstag,  as  principal  holder  of 

sovereignty  138 

2.  Legislative  powers;   how   laws   are   proposed   and 

passed  139 

3.  Power  of  control;  interpellations  and  committees     147 

Section  2 
the  president  of  the  reich 

The  need  for  a  strong  president  153 

The  election  of  the  President  and  the  length  of  his  term  156 

The  powers  of  the  President  162 

The  responsibility  of  the  President  168 

Section  3 

THE  cabinet  of  THE  REICH 

The  Chancellor  and  the  Ministers  according  to  the  Con- 
stitution 172 

The  working  of  constitutional  rules;  how  a  Ministry  is 

formed,  how  it  works  and  is  dissolved  177 

Section  4 

the  reichsrat 

General  features  of  the  Reichsrat  186 

The  composition  and  the  functioning  of  the  Reichsrat        188 

Powers  of  the  Reichsrat  192 


xiv  CONTENTS 

CHAPTER  V 

FUNDAMENTAL  RIGHTS  AND   DUTIES  OF 
GERMANS 

Legal  and  political  aspects  of  fundamental  rights  and 

duties  195 

Fundamental  rights  and  duties  of  the  individual  202 

Fundamental  rights  and  duties  of  communities  216 

Religion  and  the  churches  222 

Instruction  and  the  schools  226 

CHAPTER  VI 

THE  ECONOMIC  CONSTITUTION  AND  SOCIAL- 
IZATION 

Section  1 
the  economic  constitution 

The  "anchorage"  of  the  Councils  in  the  Constitution  236 

Constitutional  provisions  relative  to  the  Councils  244 

Factory  Workers  Councils  248 

The  Trade  Unions  and  the  Councils  257 

The  Provisional  Economic  Council  263 

Section  2 

socialization 

The  problem  of  socialization  269 

Collective  economy  275 

The  regulation  of  the  coal  industry  280 

CONCLUSION 

APPENDIX 

The  Constitution  of  August  11,  1919  (text)  297 


The  German 
Constitution 


CHAPTER   I 

THE   ORIGINS 

Up  to  the  autumn  of  1918  Germany  was  under  the  Empire 
of  the  Constitution  of  April  16,  1871.  Then  in  November, 
1918,  the  work  of  Bismarck  was  suddenly  overthrown  and 
military  defeat  and  revolution  plunged  Germany  into  chaos. 
How  she  worked  out  of  it,  through  what  vicissitudes  she 
passed  and  with  what  groping  she  finally  achieved  her  new 
Constitution  is  the  question  to  examine  first. 

SECTION   I 

THE  REVOLUTION 

The  revolution  of  November,  1918,  was  preceded  by  partial 
reforms  embodied  at  a  late  hour  in  the  Constitution  of  1871  ; 
and  when  it  broke  out,  in  a  few  hours  it  completely  threw 
over  all  the  apparatus  of  the  old  régime.  A  new  government 
sprang  up  which  for  several  weeks  held  power  in  the  name  of 
a  minority  and  without  any  right  other  than  that  of  force. 

1. — THE   CONSTITUTION   OF  APRIL   16,    1871,  AND  THE  REFORMS 
OF  OCTOBER,  1918. 

The  principal  characteristics  of  the  Constitution  of  April 
16,  1871,  are  well  known. 

Germany  was  a  federal  state,  that  is  to  say,  above  the 
member  states,  which  renounced  a  part  of  their  individual 
independence  to  strengthen  their  collective  political  and 
economic  power,  there  existed  a  central  state  in  whose  favor 
they  had  given  up  that  degree  of  independence — the  German 
Empire. 

In  the  Reich  sovereign  power  belonged  to  an  assembly  of 

1 


2  THE  GERMAN  CONSTITUTION 

Princes  and  of  governments  represented  by  the  Bundesrat  or 
Federal  Council.  This  council  which  consisted  of  representa- 
tives of  all  the  member  states  shared  with  the  Reichstag  the 
power  to  initiate  and  vote  legislation.  It  promulgated  the 
general  administrative  measures  necessary  for  the  execution  of 
the  laws;  and  with  the  consent  of  the  Emperor  it  could 
dissolve  the  Reichstag. 

The  nation  was  presided  over  by  the  German  Emperor. 
He  exercised  generally  the  rights  which  modern  nations  reserve 
to  the  executive  power.  In  particular  he  represented  the 
Empire  in  its  international  relations;  promulgated  its  laws; 
watched  over  their  execution;  appointed  civil  and  military 
oflScials,  etc. 

Several  remarkable  details  have  to  be  pointed  out.  Although 
in  principle  the  Emperor's  actions  had  to  be  countersigned 
by  a  minister  he  was  free  from  that  restriction  in  such  matters 
as  concerned  military  affairs,  particularly  in  the  nomination 
of  the  superior  ofiBcers  of  the  army  and  the  navy.  The 
German  Emperor  was  the  absolute  chief  of  the  forces  of  the 
Empire  on  sea  and  land.  Furthermore,  although  he  could 
not  declare  war  without  the  consent  of  the  Bundesrat  he  could 
act  on  his  own  authority  in  case  of  attack  by  a  foreign  power 
against  the  territory  or  the  coasts  of  the  German  Confedera- 
tion. 

The  Emperor  nominated  the  Chancellor,  who  was  after  the 
Emperor  himself,  the  sole  chief  of  the  political  and  adminis- 
trative organization  of  the  Empire.  "The  Chancellor,"  says 
Article  15,  "presides  over  the  Bundesrat  and  directs  its 
labours."  But  as  he  clearly  could  not  himself  assume  such  an 
overwhelming  task,  he  was  authorized  by  the  law  of  March  17, 
1878,  to  call  assistance  and  be  supplemented  at  need  by  high 
functionaries  placed  at  the  head  of  Imperial  departments — 
those  of  foreign  affairs,  of  the  interior,  justice,  treasury,  rail- 
roads, marine,  colonies,  posts  and  telegraphs.  These  oflBcials 
carried  the  title  of  State  Secretaries,  which  seemed  to  give 


THE  REVOLUTION 


them  something  of  the  nature  of  ministers,  though  in  reality 
they  were  completely  subordinated  to  the  Chancellor. 

Just  as  the  Bundesrat  represented  the  federated  Princes 
so  the  Reichstag  represented  the  German  people.  Elected  by 
direct  and  universal  suffrage  the  Reichstag  had  the  right  to 
initiate  legislation;  and  no  law  was  operative  unless  it  had 
obtained  a  majority  both  in  the  Bundesrat  and  in  the  Reichs- 
tag. Furthermore  the  Reichstag  had  the  right  to  interpellate, 
not  the  Secretaries  of  State  but  the  Chancellor  himself  and 
to  ask  questions  ;  and  discussions  of  a  question  could  be  closed 
by  voting  an  expression  of  the  confidence  of  the  Assembly. 

Under  the  Empire  there  were  twenty-five  states  ^  and  the 
territory  of  Alsace-Lorraine. 

These  states  were  governed  by  constitutions  of  the  greatest 
variety.  There  were  three  free  cities,  Hamburg,  Bremen  and 
Liibeck;  twenty-two  monarchies,  which  carried  different  titles; 
Kingdoms — Prussia,  Bavaria,  Saxony,  Wurtemberg;  Grand 
Duchies — Baden,  Hesse;  Duchies — Saxe-Coburg-Gotha,  Saxe- 
Meinigen;  and  Principalities — ^Waldeck,  Schaumburg-Lippe, 
etc. 

Among  these  states  some,  a  large  majority  but  the  least 
important,  had  adopted  the  system  of  the  single  legislative 
chamber,  which,  with  one  or  two  exceptions,  comprised,  beside 
the  deputies  elected  by  universal  suffrage,  members  named  by 
the  princes  of  the  state,  or  by  special  electoral  colleges  such 
as  groups  of  the  heaviest  tax  payers,  chambers  of  commerce, 
industrial  and  agricultural  organizations,  the  clergy,  the  pro- 
fessions, etc. 

The  other  states,  four  kingdoms  and  the  Grand  Duchies  of 
Baden  and  of  Hesse,  had  two  chambers  each.     The  upper 

'  Prussia,  Bavaria,  Saxony,  Wurtemberg,  Baden,  Hesse,  Mecklenburg- 
Schwerin,  Saxe-Weimar,  Mecklenburg-Strelitz,  Oldenburg,  Brunswick, 
Saxe-Meiningen,  Saxe-Altenburg,  Saxe-Coburg-Gotha,  Anhalt,  Sciiwarz- 
burg-Rudolstadt,  Schwarzburg-Sondor.shauscn,  Waldeck,  Rcuss  (eld- 
er line),  Rcuss  (younger  line),  Schaumburg-Lippo,  Lippe,  Lubeck, 
Bremen  and  Hamburg. 


4  THE  GERMAN  CONSTITUTION 

house  was  almost  entirely  composed  of  members  of  the  reign- 
ing families  or  their  kin  and  of  personages  charged  with  rep- 
resenting the  nobility  or  the  great  landed  proprietors.  The 
lower  house  was  elected  sometimes  by  universal  suffrage, 
sometimes  by  a  system  of  plural  voting;  or  by  a  system  that 
divided  the  population  in  such  a  way  that  the  voice  of  the 
people  was  nullified  almost  entirely  in  favor  of  the  big  tax- 
payers as  in  Prussia. 

All  this  would  present  an  erroneous  and  incomplete  picture 
if  one  did  not  take  the  precaution  to  search  beyond  the  letter 
of  these  constitutions  and  inquire  how  the  government  of 
Germany  was  actually  conducted.  The  political  institutions 
of  Germany  presented  a  certain  number  of  aspects  which  it 
is  important  to  bring  out  clearly:  ^ 

1.  These  institutions  were  anti-democratic.  It  is  true  the 
Reichstag  was  elected  by  universal  and  direct  suffrage.  But, 
on  the  one  hand  the  electoral  legislation  of  the  Reich  contained 
certain  provisions  which  were  singularly  behind  the  times, 
such  as  the  denial  to  the  poor  of  the  right  to  vote,  the  fixinjg  of 
the  voting  age  at  twenty-five,  etc.  On  the  other  hand,  the 
Bundesrat,  which  was  not  elected,  possessed  powers  superior 
to  those  of  the  Reichstag;  and  the  latter  could  do  nothing 
without  the  Bundesrat.  The  same  situation  existed  within  the 
individual  states,  which  either  did  not  have  a  chamber  elected 
by  universal  suffrage  or  else  limited  it  in  power  by  the  check 
of  an  upper  house,  feudal  and  conservative  in  character. 

2.  These  institutions  were  anti-parliamentary.  The  Reichs- 
tag could  interpellate  the  Chancellor  but  could  not  depose 
him.  To  a  question  or  to  an  interpellation  the  Chancellor  was 
always  free  to  respond  that  he  did  not  wish  to  reply;  or  he 
could  fix  his  own  time  for  replying;  and  finally,  if  he  was  in 
the  minority  in  the  house  he  did  not  have  to  resign. 

^  See  Joseph-Barthélémy,  les  Institutions  politiqiœs  de  l'Allemagne 
contemporaine,  Paris,  Alcan,  1915. 


THE  REVOLUTION 


3.  The  Reich  encroached  more  and  more  on  the  domain  of 
the  individual  states.  This  encroachment,  this  evolution 
toward  unitarism,  manifested  itself  in  most  divers  ways.  In 
military  matters  it  took  the  form  of  a  fusion  of  fighting  con- 
tingents which  belonged  more  or  less  nominally  to  the  various 
states,  but  which,  with  the  exception  perhaps  of  Bavaria, 
placed  their  whole  force  at  the  direct  command  of  the  Emperor. 
As  for  Bavaria,  at  the  outbreak  of  the  war  its  "reserved 
rights"  had  almost  completely  disappeared.  The  development 
of  the  legislation  of  the  Empire  had  accentuated  this  evolu- 
tion toward  unitarism.  In  the  measure  that  the  Reich  legislated 
in  a  large  number  of  domains,  it  wiped  out  in  these  matters  the 
different  regulations  that  existed  up  to  then  in  the  individual 
states.  It  is  true  that  the  execution  of  the  national  legislation 
was  entrusted  to  functionaries  within  these  states;  but  these 
ofiScials  were  under  the  control  of  the  Bundesrat  and  subject 
to  the  supervision  of  the  Reich.  Even  in  financial  matters 
the  liberty  of  the  individual  states  was  more  and  more  limited. 
While  it  is  true  that  they  conserved  their  autonomy  in  matters 
of  duties  and  taxes,  the  more  the  Reich  discovered  new  sources 
of  revenue  the  more  the  legislation  of  the  Empire  imposed  on 
the  several  states  the  task  of  collecting  this  revenue  and  the 
more  narrow  became  the  scope  in  which  the  states  could  man- 
age their  own  financial  affairs,  and  the  dependency  of  the 
states  grew  the  more  on  the  financial  legislation  and  the 
budgetary  dispositions  allowed  them  by  the  Reich.^ 

4.  In  contrast  to  the  other  federated  states  whose  Consti- 
tutions were  based  on  the  principle  of  equality  of  the  com- 
ponent states,  Germany  was  based  on  the  notion  of  the  in- 
equality of  the  states  federated  in  it.  Prussia  exercised  a  true 
hegemony  in  Germany.  In  the  Bundesrat  it  was  represented 
by  17  votes  whereas  the  other  most  favoured  state,  Bavaria, 
had  but  6;  two  others,  Saxony  and  Wurtenberg,  had  only  4 

^See  Laband,  Die  gpRchicMlichc  Entwicklung  dor  Reichsverfassung  in 
the  Jahrhuch  des  oejjentlichen  Rechts,  1907,  p.  1,  el  seq. 


6  TPIE  GERMAN  CONSTITUTION 

each;  two,  Baden  and  Hesse,  3  each;  Mecklenburg  and  Bruns- 
wick, 2  each  ;  and  all  the  others  but  1  apiece.  In  addition  the 
Rhineland  was  also  represented  by  3  votes  in  the  Bundesrat 
but  these  votes  were  instructed  by  Prussia.  The  latter,  there- 
fore, had  17  votes,  20  with  those  of  Alsace-Lorraine,  21  with 
that  of  Waldeck,  since  the  latter  by  its  treaty  of  entry  into 
the  Confederation  had  abandoned  its  governmental  rights  to 
Prussia.  It  had  therefore  numerically  a  third  of  the  total 
strength  of  the  Bundesrat,  while  in  actual  influence  it  counted 
much  more.  Only  Prussia  could  feel  assured  that  its  repre- 
sentation made  it  mistress  of  the  situation  in  the  Bundesrat; 
fourteen  votes  were  sufficient  to  head  off  a  constitutional 
change.  Consequently  Prussia  possessed  absolute  veto  power. 
It  must  not  be  forgotten  that  the  representatives  of  the  Princes 
in  the  Bundesrat  received  imperative  mandates  from  them  and 
that  the  representatives  of  the  state  had  to  cast  their  votes 
as  a  bloc — that  is,  as  a  unit.  It  mattered  little,  therefore, 
that  such  and  such  was  the  numerical  representation  in  the 
Bundesrat  of  the  particular  states,  that  Prussia  had  17  votes, 
Bavaria  6,  etc.  As  to  legislative  changes  relating  to  the  army 
or  the  navy,  and  to  taxes  feeding  the  treasury  of  the  Empire, 
nothing  of  this  kind  could  be  enacted  if  it  was  opposed  by 
the  "presidency."  And  the  "presidency"  belonged  by  un- 
disputed right  to  Prussia. 

In  the  Reichstag  Prussia  exercised  the  same  preponderance. 
The  Reichstag  was  composed  of  deputies,  one  for  each  100,000 
inhabitants.  There  Prussia  counted  much  more  than  half, 
for  its  population  was  nearly  two-thirds  that  of  the  whole 
Empire— 40,165,217  out  of  64,925,933.  She  also  elected  236 
deputies  out  of  the  397  that  made  up  the  Reichstag. 

To  the  same  degree  she  was  in  control  of  executive  action. 
While  sovereignty  nominally  resided  in  the  assemblage  of 
Princes  in  the  Bundesrath,  it  resided  no  less  in  the  hands  of 
the  King  of  Prussia  who  had  full  rights  as  the  German  Em- 
peror; and  it  was  he  who  nominated  the  Chancellor,  the  sole 


THE  REVOLUTION 


responsible  minister  of  the  Empire.  The  Chancellor  was 
almost  always  a  subject  of  the  King  of  Prussia  and,  following 
a  rule  to  which  there  were  few  exceptions,  at  the  same  time 
the  Prime  Minister  of  Prussia. 

Thus,  therefore,  Prussia  elected  a  majority  in  the  Reichstag, 
and  if  by  some  extraordinary  chance  the  latter  voted  against 
the  desire  of  Prussia  the  decree  could  be  nullified  by  the 
Prussian  representative  in  the  Bundesrath.  The  King  of 
Prussia  was  Emperor.  He  nominated  the  Chancellor,  chief  of 
all  the  administrative  machinery  of  the  state.  The  King  of 
Prussia  was  master  of  the  government  of  the  Empire.  Ger- 
many was  a  veritable  Prussia  enlarged. 

We  can  now  distinguish  the  essential  traits  that  charac- 
terized constitutional  Germany  on  the  eve  of  the  war.  There 
was  in  Germany,  under  the  infinite  complexity  of  written 
provisions,  behind  a  deliberately  effected  juxtaposition  of  the 
most  modern  formula  by  the  side  of  some  of  the  most  archaic, 
a  living  reality.  It  was  a  despotic  organization  that  placed 
full  power  in  the  hands  of  a  feudal  monarch.  It  was,  to  put 
it  in  the  words  of  President  Wilson,  the  largest  enterprise  of 
domination  that  the  world  has  ever  known. 

Such  a  system  and  that  which  made  it  such  an  anachronism 
could  not  survive  the  test  of  war  and  still  less  that  of  defeat. 

Already  during  the  war  several  demands  for  reforms  made 
themselves  felt.  In  proportion  as  the  war  was  prolonged  and 
the  heavier  became  the  burdens  that  weighed  on  the  people 
together  with  the  sacrifices  that  were  imposed  upon  them, 
there  developed  a  pressure  on  the  part  of  the  people  for  recog- 
nition, for  compensation,  for  the  right  to  participate  in  a  more 
effective  fashion  in  the  conduct  of  public  affairs.  The  Reichs- 
tag appointed  a  commission  to  investigate  to  what  extent  it 
was  possible  to  modify  the  Constitution  of  the  Reich  in  con- 
formity with  the  desires  of  the  people.  On  his  part  the  Em- 
peror in  a  message  on  April  7,  1917,  declared  that  it  was  the 


8  THE  GERMAN  CONSTITUTION 

duty  of  the  Chancellor  to  satisfy  the  exigencies  of  new  times 
with  every  means  appropriate;  and  to  reconstruct  the  con- 
stitutional edifice  in  such  a  way  as  to  insure  a  free  and 
spontaneous  collaboration  of  all  the  elements  of  the  nation. 
The  Chancellor  seemed  to  be  in  accord  with  the  Emperor  on 
the  necessity  and  urgency  of  a  "new  orientation." 

On  the  15th  of  May,  1917,  Bethmann-Hollweg  spoke  of 
realizing  a  programme  of  "trusting  collaboration  of  the  Em- 
peror and  the  nation."  On  July  19,  1917,  Michaelis  fore- 
shadowed the  establishment  of  a  close  contact  between  a 
government  and  parliament,  the  creation  of  a  bond  of  mutual 
confidence  between  the  government  of  the  Empire  and  the 
Reichstag,  in  the  sense  that  the  management  of  various  affairs 
should  be  entrusted  to  men  who,  aside  from  their  professional 
abilities,  would  enjoy  the  full  confidence  of  the  great  parties 
in  the  popular  branch  of  the  government. 

They  were  nothing  but  vague  words;  and  this  "parliamen- 
tarization"  of  the  government  of  the  Reich  did  not  commence 
to  show  itself  until  the  pressure  of  defeat  came,  such  as  was 
felt  in  the  summer  of  1918.  The  adoption  of  a  parliamentary 
régime  then  seemed  the  sole  means  of  obtaining  from  the 
masses  the  sacrifices  which  were  still  expected  of  them  both 
on  the  firing  line  and  in  the  interior. 

The  true  reforms  commenced  with  the  letter  which  the 
Emperor  wrote  on  September  30,  1918,  to  the  departing 
Chancellor  von  Hertling,  and  which  was  a  real  message  to  the 
German  people  and  to  the  Reichstag.  "I  desire,"  said  the 
Emperor,  "that  the  German  people  shall  collaborate  more 
effectively  than  in  the  past  in  the  determination  of  the  destiny 
of  our  Fatherland.  It  is  my  wish  therefore  that  men  invested 
with  the  confidence  of  the  people  shall  participate  in  a  large 
measure  in  the  rights  and  duties  of  the  government."  Legally 
it  was  only  an  expression  of  the  hitherto  recognized  imperial 
will.  But  from  a  political  point  of  view  this  message  con- 
stituted the  recognition  of  a  new  system  of  government,  in 


THE  REVOLUTION 


virtue  of  which  the  centre  of  gravity  of  political  institutions 
passed  from  the  organs  of  the  government,  the  Bundesrath 
and  the  Emperor,  to  the  popular  assembly,  the  Reichstag, 

The  spirit  in  which  the  new  reforms  were  to  be  carried  out 
and  the  importance  which  they  were  to  assume  were  made 
clearer  several  days  later  when,  on  October  5,  1918,  Chan- 
cellor Maximilian  of  Baden  in  a  programme  speech  addressed 
in  the  Reichstag  said,  "It  is  in  the  essence  of  the  system  of 
the  government  which  we  are  now  instituting  that  I  now  state 
clearly  and  without  reservation  the  principles  by  which  I 
shall  seek  to  fulfil  my  heavy  responsibilities.  These  prin- 
ciples were  accepted  before  I  assumed  my  duties  as  Chancellor 
in  an  agreement  reached  between  confederated  governments 
and  the  chiefs  of  the  parties  of  the  majority  of  this  Chamber. 
...  It  is  only  when  the  people  take  an  active  part  to  the 
largest  measure  in  the  determination  of  the  destiny  of  the 
nation;  and  when  the  sense  of  responsibility  is  also  shared  by 
the  majority  of  the  political  chiefs  freely  elected,  that  a 
statesman  can  accept  direction  of  the  helm  with  confidence  and 
himself  participate  in  this  responsibility.  Otherwise  the 
shoulders  of  one  man  will  be  too  feeble  to  support  the  immense 
responsibility  that  now  confronts  our  government.  I  am  con- 
vinced that  the  manner  in  which  the  directing  government  has 
been  formed  to-day  with  the  collaboration  of  the  Reichstag 
is  not  temporary  in  its  nature  and  that  in  times  of  peace  here- 
after no  government  can  be  formed  that  .has  not  the  support 
of  the  Reichstag,  that  does  not  lean  on  the  Reichstag,  and 
that  does  not  take  from  the  Reichstag  its  principal  chiefs." 

As  a  consequence  two  laws  were  passed  which  carried  the 
date  of  October  28,  1918.  They  were  designed  to  meet  the 
three  most  important  exigencies  of  the  hour: 

1.  They  realized  the  parliamentarization  of  the  government 
of  the  Reich.    Article  15  of  the  Constitution  of  1871,  which 


10  THE  GERMAN  CONSTITUTION 

dealt  with  the  nomination  of  the  Chancellor  had  the  following 
amendment  added:  "The  Chancellor  in  order  to  continue  di- 
rection of  the  affairs  of  the  Reich  must  have  the  confidence 
of  the  Reichstag.  The  Chancellor  is  responsible  for  all  the 
political  acts  of  the  Emperor  performed  in  the  exercise  of  his 
constitutional  rights.  The  Chancellor  and  his  representatives 
are  responsible  for  the  conduct  of  affairs  to  the  Bundesrat  and 
the  Reichstag."  ^ 

This  text  established  not  only  the  responsibility  of  the 
Chancellor;  it  also  recognized  constitutionally  the  right  of 
parties  or  their  parliamentary  groups  to  participate  in  the 
nomination  of  the  Chancellor  and  it  specified  that  when  the 
confidence  of  the  Reichstag  is  withdrawn  from  the  Chancellor 
he  must  resign. 

The  responsibility  of  the  Chancellor,  who  was  answerable 
both  to  the  Reichstag  and  to  the  Bundesrat,  extended  not  only 
to  the  general  and  particular  decrees  issued  by  the  Emperor 
and  countersigned  by  the  Chancellor  but  also  to  acts  of  a 
political  nature  on  the  part  of  the  Emperor;  and  it  followed 
from  this  that  the  Chancellor  and  his  representatives  were 
also  responsible  for  their  own  actions  of  the  same  character. 

Further,  one  of  the  laws  of  October  28,  1918,  in  abrogating 
paragraph  2  of  Article  21  of  the  Constitution  of  1871,  per- 
mitted thereafter  members  of  the  Reichstag  to  become  secre- 
taries of  state  while  fulfilling  at  the  same  time  their  functions 
as  members  of  the  Reichst^.  On  the  other  hand  the  incom- 
patibility between  the  Bundesrat  and  the  Reichstag  (article 
9,  paragraph  2,  of  the  Constitution  of  1871)  was  not  abolished. 
It  followed  from  that,  therefore,  that  while  a  member  of  the 
Reichstag  could  become  a  Secretary  of  State,  he  could  not 
become  a  member  of  the  Bundesrat  and  therefore  could  not 

^Piloty,  Die  Vmjormung  der  Reichsregierung  und  die  Reichsverj as- 
sung,  Deutsche  Juristen  Zeitung,  1918,  p.  651,  et  seg.;  Stier-somlo, 
Reichsierfassung,  p.  6. 

Page  13,  footnote  1.  See  the  text  of  these  claims  in  Gentizon,  la 
Révolution  allemande.    1  vol.    Payot,  Paris,  1919,  p.  222. 


THE  REVOLUTION  11 

become  Chancellor;  for  that  office  was  open  only  to  members 
of  the  Bundesrat. 

2.  The  laws  of  October  28,  1918,  broadened  considerably 
the  authority  of  the  Reichstag  and  diminished  correspond- 
ingly the  Imperial  authority  in  the  right  to  declare  war  and 
conclude  treaties.  The  Emperor  could  never  again  under  any 
circumstances  declare  war  in  the  name  of  the  Reich  without 
the  consent  of  the  Reichstag  and  the  Bundesrat.  He  was 
required  to  obtain  the  same  consent  of  the  two  assemblies  to 
conclude  treaties  of  peace  and  all  other  treaties  that  touched 
matters  in  which  either  of  the  assemblies  had  competence. 

3.  The  authority  of  the  Emperor  as  military  commander 
was  put  under  parliamentary  control. 

These  reforms  constituted  certainly  important  progress 
along  the  road  of  parliamentary  rule  and  it  can  be  said 
that  it  placed  Germany  thereafter  among  the  nations  that 
are  governed  by  such  a  system. 

The  texts  of  the  laws  of  October  28,  1918,  were  accom- 
panied by  a  letter  of  the  Emperor  to  the  Chancellor  in  which 
he  wrote:  "Prepared  by  a  series  of  governmental  acts  a  new 
order  comes  into  being  in  which  fundamental  rights  of  the 
Emperor  pass  to  the  people.  After  the  events  of  these  our 
times  the  German  people  must  not  be  denied  a  single  right 
that  is  needed  to  guarantee  them  a  free  and  happy  future.  I 
acquiesce  together  with  my  highest  colleagues  in  the  decisions 
of  the  representatives  of  the  people  and  do  so  with  the  firm 
determination  to  co-operate  to  the  greatest  effectiveness^  con- 
vinced that  I  will  thus  serve  the  welfare  of  the  German  people. 
The  Emperor  is  at  the  service  of  the  people." 

German  jurists  with  good  reason  characterized  this  letter 
as  a  "political  abdication."  But  the  changes  which  went  with 
it  came  too  late,  and  a  simple  "political  abdication"  ap- 
peared thereafter  as  strikingly  insufficient.  The  German  Em- 
pire was  falling  into  ruin  and  it  was  no  longer  a  question  of 
partial  reforms. 


12  THE  GERMAN  CONSTITUTION 

2. — THE   FALL   OF   THE   OLD   REGIME. 

Revolution  broke  out  in  Germany  at  the  beginning  of 
November,  1918. 

From  the  end  of  October  riots  and  revolts  had  been  taking 
place  on  board  the  vessels  of  the  Imperial  navy.  But  on 
November  4  at  Kiel  there  broke  out  a  revolt  among  the  sailors, 
who  became  masters  of  the  situation.  They  formed  a  Council 
of  Soldiers  which  presented  to  the  mayor  of  the  city  a  list 
of  demands — the  liberation  of  arrested  sailors;  the  suppres- 
sion of  a  military  hierarchy  outside  of  the  service;  a  demand 
that  the  approval  of  the  Council  of  Soldiers  be  necessary  for 
all  military  measures,  etc. 

The  next  day  the  workers  of  Kiel  declared  a  general  strike 
and  formed  Workers  Councils  which  united  with  Councils  of 
Soldiers  consisting  of  the  marines  of  the  city. 

From  Kiel  the  movement  spread  the  same  day  to  Lubeck 
and  to  Hamburg.  On  the  6th,  a  general  strike  was  proclaimed 
in  the  dock  yards  of  Hamburg  and  revolution  broke  out  in 
Bremen. 

Simultaneously  revolution  won  other  cities:  Hanover, 
Cologne,  Magdeburg,  Brunswick,  Leipzig,  and  Dresden,  where 
Councils  of  Workers  and  Soldiers  were  formed.  From  Novem- 
ber 4th  to  the  9th  all  North  Germany,  the  South  and  the 
Centre  fell  into  the  hands  of  the  Councils. 

The  movement,  which  at  its  beginning  could  be  considered 
as  principally  a  military  revolt,  took  on  for  the  first  time  a 
political  character  most  clearly  marked  in  Munich,  where 
in  the  night  of  the  eighth  of  November  after  a  great  manifesta- 
tion by  the  Independent  Socialists  serious  disturbances  broke 
out.  The  royal  family  was  expelled  and  the  Republic  pro- 
claimed. 

With  few  exceptions  the  revolutionists  met  with  no  opposi- 
tion.   The  bourgeoisie  did  not  react.    It  was  enough  for  some 


THE  FALL  OF  THE  OLD  REGIME     13 

thirty  marines  from  Kiel  to  enter  a  town  or  for  a  group  of 
soldiers  returning  from  the  fighting  front  to  present  them- 
selves at  the  city  hall.  Immediately  every  one  yielded  to 
their  orders  and  the  Councils  were  able  to  install  themselves 
in  power  without  firing  a  shot.  In  this  revolution,  to  which 
no  serious  opposition  had  been  presented  and  which  appeared 
rather  as  the  collapse  of  an  old  régime  whose  reason  for  ex- 
istence had  vanished,  there  lacked  only  to  complete  it  the 
fall  of  the  capital  and  the  abdication  of  the  monarch. 

At  Berlin  the  military  power  devoted  itself  to  the  defence 
of  the  city.  On  the  fifth  a  state  of  siege  was  proclaimed  and 
on  the  seventh  a  decree  forbade  the  formation  of  Councils 
of  Soldiers  and  of  Workers  "on  the  Russian  model." 

But  the  same  day  the  Social  Democrats  sent  to  Chancellor 
Maximilian  of  Baden  the  Secretary  of  State  Scheidemann,  the 
bearer  of  an  ultimatum  demanding  the  immediate  abrogation 
of  the  decree  forbidding  meetings;  such  a  transformation  of 
the  government  of  Prussia  that  those  in  control  of  it  should 
be  of  the  same  political  complexion  as  the  majority  of  the 
Reichstag;  the  strengthening  of  the  Social  Democratic  influ- 
ence in  the  government;  and  finally  the  abdication  of  the 
Emperor  and  the  renunciation  by  the  Crown  Prince  of  all 
claims  to  the  throne. 

Although  confronted  with  imminent  revolution  only  officiais 
and  functionaries  were  overthrown.  The  bourgeoisie  here  as 
elsewhere  looked  on  passively  and  attempted  no  resistance. 

As  for  Maximilian  of  Baden  he  hoped  to  find  a  basis  for 
negotiation.  He  pondered  measures  to  parliumentarize  still 
further  the  old  government  and  contemplated  the  immediate 
convocation  of  a  constituent  assembly  to  develop  a  new  con- 
stitution. Meanwhile  he  did  not  reply  to  the  ultimatum  of 
the  Social  Democrats.  Whereupon  there  were  organized 
Councils  of  Workers  and  Soldiers  in  Berlin  who  made  them- 
selves felt  with  their  first  act  on  the  morning  of  the  ninth  of 
November  by  declaring  a  general  strike. 


14  THE  GERMAN  CONSTITUTION 

The  Chancellor  could  no  longer  delay  action.  On  the 
ninth  at  two  o'clock  in  the  afternoon,  after  a  telephonic  con- 
versation with  William  II,  he  announced  officially  that  the 
Emperor  had  abdicated  and  that  the  Crown  Prince  had  re- 
nounced the  throne.  He  declared  that  he,  Maximilian  of 
Baden,  would  remain  in  office  until  the  installation  of  the 
Regent.  He  w'ould  propose  to  the  Regent  the  nomination  as 
Chancellor  of  the  Social  Democratic  leader  Ebert,  and  the 
convocation  of  electoral  colleges  with  the  view  of  choosing  a 
national  constituent  assembly  to  which  would  be  given  the 
task  of  directing  the  future  of  the  state. 

Thus  the  Chancellor  hoped  to  the  last  moment  to  effect  in 
an  almost  legal  manner  the  transition  from  the  old  to  the  new 
Germany.  But  the  pressure  of  events  was  too  strong  for  him 
and  he  was  not  able  to  realize  his  hope. 

In  the  early  part  of  the  afternoon,  Ebert  accompanied  by 
Scheidemann  appeared  at  the  Chancellery  and  declared  in 
the  name  of  their  party  that  in  order  to  avoid  bloodshed  and 
to  maintain  public  order  they  considered  it  necessary  to  take 
power  in  their  hands  and  assume  the  direction  of  the  govern- 
ment. When  Vice-Chancellor  von  Payer  asked  Ebert  if  he 
intended  to  conduct  the  government  on  the  basis  of  the  Con- 
stitution or  in  the  name  of  the  Councils  of  Workers  and 
Soldiers,  Ebert  replied,  "Within  the  frame  work  of  the  con- 
stitution." After  short  deliberation  and  in  view  of  the  fact 
that  the  troops  in  Berlin  had  deserted  the  old  government  the 
cabinet  of  Maximilian  decided  to  place  in  the  hands  of  Ebert 
the  powers  of  Chancellor  of  the  Empire  "subject  to  the  ap- 
proval of  the  legislature."  Ebert  at  once  entered  into  office 
without  the  question  of  the  regency  being  decided. 

But  the  Socialist  parties  pressed  for  the  proclamation  of  a 
republic.  This  proclamation  took  place  several  minutes  after 
the  installation  of  Ebert  as  Chancellor.  In  answer  to  the 
clamor  of  a  great  gathering  of  the  people  in  front  of  the 
Reichstag  Scheidemann  appeared  on  the  terrace  and  declared 


THE  FALL  OF  THE  OLD  RÉGIME     15 

in  substance,  "We  have  conquered  everywhere  along  the  line. 
The  old  régime  is  no  more.  Ebert  is  Chancellor.  Our  deputy, 
Lieutenant  Gohre,  is  associate  minister  of  war.  We  must  now 
strengthen  our  victory  and  nothing  will  stop  our  march.  The 
Hohenzollerns  have  abdicated.  Let  us  see  to  it  that  this 
magnificent  day  is  marred  by  nothing.  May  this  be  a  day  of 
eternal  glory  in  the  history  of  Germany.  Long  live  the 
German  Republic!" 

The  same  day  and  almost  the  same  hour  similar  events 
took  place  in  all  the  states  of  Germany.  Everywhere  under 
the  threat  and  under  the  pressure  of  the  Councils  of  Workers 
and  Soldiers  the  old  Diets  and  the  old  governments  vanished. 
The  kings,  the  grand  dukes  and  the  dukes  resigned  or  were 
simply  replaced.  The  republic  was  proclaimed.  One  can  say 
that  on  November  9,  1918,  when  at  two  in  the  afternoon  in 
front  of  the  Reichstag  ScReidemann  proclaimed  the  Republic, 
the  ancient  régime  had  fallen  in  Germany. 

From  this  date  on  all  the  organs  of  government  which  had 
incarnated  the  old  régime  disappeared  or  were  entirely 
transformed. 

The  Bundesrat,  in  which  the  sovereignty  of  the  old  Reich 
was  incorporated,  ceased  to  exist  as  such.  It  is  true  that  the 
new  leaders  of  the  Reich  permitted  the  Bundesrat  "the  right 
to  continue  the  exercise  of  administrative  powers  according 
to  laws  and  regulations"  (decree  of  November  14,  1918)  ;  and 
thus  there  continued  a  Bundesrat  of  limited  power.  But  it 
was  no  longer  the  old  Bundesrat,  for  the  governments  of  the 
individual  states,  having  changed  through  revolution,  sent 
new  delegates  who  no  longer  represented  princes  but  republics. 

Naturally  there  was  no  longer  any  question  of  the  Emperor. 
Having  lost  his  crown  on  November  9,  he  fled  across  the  Dutch 
frontier  on  the  10th,  as  a  private  individual  and  his  letter 
from  Amerongen  on  November  28,  1918,  in  which  he,  Wil- 
liam II,  declared  that  he  expressly  renounced  for  all  time  the 


16  THE  GERMAN  CONSTITUTION 

crown  of  Prussia  and  thereby  "the  Imperial  German  crown," 
had  only,  so  to  speak,  a  moral  effect. 

After  the  resignation  of  Maximilian  of  Baden  there  was 
no  longer  a  Chancellor  of  the  Empire.  It  is  true  that  he  had 
passed  on  his  powers  to  Ebert  but  we  will  see  shortly  that 
Ebert  did  not  consider  himself  as  such  except  for  a  few  hours. 

As  for  the  Reichstag  whose  last  session  ended  on  October 
26,  1918^  it  was  not  exactly  dissolved  after  the  revolution. 
At  the  same  time  no  formal  dissolution  was  necessary,  for  a 
new  sovereignty  had  been  installed  and  had  taken  the  place 
of  the  old  Reichstag.  Meanwhile,  taking  advantage  of  the 
fact  that  no  formal  decision  had  been  made  as  to  the  old 
Reichstag  the  chairman  of  that  assembly,  Fehrenbach,  re- 
fused to  recognize  its  implied  dissolution.  On  November  12, 
1918,  he  addressed  a  circular  to  the  deputies  in  which  he  de- 
clared that  owing  to  the  exigencies  of  the  hour  and  without  the 
consent  of  the  government  he  would  convoke  the  Reichstag, 
reserving  to  himself  the  right  to  announce  later  the  time  and 
place  of  the  assembly.  The  revolutionary  government  there- 
upon notified  Fehrenbach  that  a  conflict  would  ensue  thereat. 
Notwithstanding  this  Fehrenbach  several  days  later  repeated 
the  announcement  of  the  convocation.  But  the  old  Reichstag 
never  met  again.  In  February,  1919,  it  was  dissolved  by 
decree  which  also  declared  that  its  last  session  was  dated  as 
of  November  9,  1919. 

3. — THE   REPUBLIC   OP  THE   COUNCILS. 

While  the  Empire  was  collapsing  there  arose  quickly  on  the 
ruins  of  the  old  edifice  a  new  structure.  In  place  of  the 
Empire,  the  government  of  a  bourgeois  and  military  oligarchy, 
came  the  dictatorship  of  the  proletarian  masses  at  one  blow, 
the  republic  of  the  working  class.  Everywhere  Councils  of 
Workers  and  Soldiers  were  formed,  which,  taking  political 
power  in  their  hands,  appeared  to  be  thereafter  the  only  and 
real  holders  of  sovereignty. 


THE  REPUBLIC  OF  THE  COUNCILS         17 


But  the  Councils  lacked  the  needed  agreement  in  aim  and 
action.  Two  diametrically  opposed  tendencies  divided  the 
new  powers  in  control.  On  the  one  hand  the  members  of  the 
Social  Democratic  party  within  the  Councils  pursued  a  purely 
political  goal — ^the  creation  of  a  German  republic  on  a 
democratic  basis  to  be  effected  by  a  Constituent  Assembly 
to  be  convoked  as  soon  as  possible.  On  the  other  hand  the 
Independent  Socialists,  the  Communists,  the  Spartacists  and 
other  left  wing  elements  set  up  as  the  principal  aim  an  eco- 
nomic change — the  quick  and  complete  socialization  of  all 
means  of  production.  But  they  also  had  in  view  a  political 
objective,  the  establishment  of  a  dictatorship  of  the  prole- 
tariat on  the  model  of  the  Russian  Soviet  Republic,  by  the 
complete  organization  of  the  system  of  Councils  of  Workers 
and  Soldiers.  The  particular  question  on  which  the  antag- 
onism between  these  two  groups  broke  out  was  whether  or 
not  there  should  be  called  a  new  constituent  assembly. 

The  revolution  was  undoubtedly  the  work  of  the  Inde- 
pendents. Their  leader,  Ernest  Daiimig,  had  been  to  Moscow 
to  study  the  Bolshevist  movement,  and  Russia  had  come  back 
with  him  in  the  persons  of  Joffe  and  his  agents  of  propaganda. 
Already  during  the  strikes  of  January,  1918,  which  had  been 
organized  by  them,  there  had  appeared  for  the  first  time  in 
Germany  Workers  Councils;  and  in  the  days  preceding  the 
insurrection  of  November,  1918,  Councils  of  Workers  and 
Soldiers  had  been  secretly  organized  at  Kiel  as  well  as  in 
Berlin.  The  Social  Democrats,  on  the  other  hand,  to  the  last 
moment  warned  the  people  against  the  consequences  of  an 
ill-considered  insurrection.  But  when  the  success  of  the  re- 
volts seemed  assured  it  was  seen  that  many  who  had  con- 
demned it  were  now  joining  it.  Thanks  to  Maximilian  of 
Baden  it  was  the  Social  Democrats,  Ebert  and  Schcidemann 
and  the  trade  unions  that  were  installed  in  power  on  the  9th 
of  November,  1918.  The  history  of  the  German  revolution 
is  the  story  of  a  revolution  made  by  one  political  group  and 


18  THE  GERMAN  CONSTITUTION 

its  fruits  garnered  by  another.  At  first  the  two  Socialist 
parties  divided  power  equally.  But  after  several  weeks  of 
collaboration  the  Social  Democrats  eliminated  the  Independ- 
ents and  remained  in  sole  control  of  the  government. 

1.  At  first  the  two  socialist  parties  participate  equally 
IN  coxTROL. — On  the  9th  of  November  early  in  the  afternoon 
Ebert  had  received  from  the  former  Imperial  cabinet  his  func- 
tions of  Chancellor  of  the  Empire.  He  considered  himself 
such  at  the  time.  His  intention  was  to  nominate  Scheidemann 
and  Landsberg  as  secretaries  of  state,  but  to  keep  in  the 
cabinet  the  old  state  secretaries;  in  addition  to  which  the 
Independent  Socialists  were  to  enter  the  government.  He  pro- 
claimed immediately  several  decrees  signed,  "Chancellor  of 
the  Empire,  Ebert." 

It  must  be  observed  that  up  to  then  the  change  which  had 
been  brought  about  constituted  without  doubt  a  revolution, 
but  a  revolution  remarkably  moderate.  It  is  true  that  con- 
stitutional right  did  not  give  the  Chancellor  the  authority  to 
name  his  successor;  from  the  legal  point  of  view  the  nomina- 
tion of  Ebert  certainly  constituted  a  violation  of  the  old  con- 
stitutional law.  Nevertheless  in  its  outer  aspect  the  new 
government  with  Ebert  at  the  head  sought  to  appear  as  the 
expression  of  the  will  of  the  former  government.  The  idea  of 
a  radically  new  law  had  not  yet  made  its  appearance. 

In  the  course  of  a  few  hours,  however,  the  situation  com- 
pletely changed.  The  Independents  submitted  as  the  condi- 
tion of  their  entry  into  the  government  the  following  twofold 
demand:  The  cabinet  was  to  consist  only  of  socialists,  and 
it  was  to  recognize  officially  that  political  sovereignty 
resided  in  the  hands  .of  the  Workers  and  Soldiers  Councils. 
The  next  day  the  Social  Democrats  accepted  these  conditions 
— for  the  Independents  were  still  the  actual  power  in  control 
and  "the  street  belonged  to  them" — and  a  government  of  six 
chiefs  was  constituted.     It  comprised  three  Socialist  Demo- 


THE  REPUBLIC  OF  THE  COUNCILS         19 

crats,  Ebert,  Scheidemann  and  Landsberg,  and  three  Inde- 
pendents, Haase,  Dittmann  and  Barth.^  In  the  evening 
there  was  held  at  the  Busch  Circus  a  plenary  session  of  the 
Workers  and  Soldiers  Councils  of  Berlin.  This  assembly- 
passed  a  resolution  which  declared  among  other  things  the 
following:  "Old  Germany  is  no  more.  The  dynasties  are  gone 
forever.  The  holders  of  thrones  are  stripped  of  their  power. 
Germany  is  now  a  Republic,  a  Socialist  Republic.  The 
Workers  and  Soldiers  Councils  are  now  the  holders  of  political 
power."  Then  the  assembly  nominated  an  executive  commit- 
tee (Vollzugsrat)  of  twenty-four  members,  six  Social  Demo- 
crats, six  Independents,  and  twelve  Soldiers,  and  they  pro- 
claimed as  the  men  in  control  of  the  government  the  six 
named  above. 

Following  this  meeting  the  cabinet  was  constituted.  It 
formed  a  "college"  of  which  all  the  members  had  equal  rights 
and  which  took  the  name  of  "Council  of  Commissars  of  the 
People  (Rat  der  Volksbeauftragten)  ;  Ebert  and  Haase  were 
nominated  chairmen.  All  the  decrees  of  the  government 
would  have  to  be  promulgated  by  these  two  in  accord  and 
signed  jointly  by  them.  It  was,  so  to  speak,  a  Chancellorship 
of  two. 

The  Council  of  Commissars  of  the  People  thus  found 
itself  invested  with  political  power  by  the  General  Assembly 
of  the  Councils  of  Workers  and  Soldiers  of  Berlin.  Making 
immediate  use  of  its  power  the  Council  of  Commissars  issued 
on  November  12,  1918,  a  proclamation  which  constituted  a 
declaration  of  rights  of  the  new  régime:  The  state  of  siege 
was  revoked.  Freedom  of  assembly  and  meeting  were  re- 
stored without  restriction.  All  political  offences  were  am- 
nestied. The  eight-hour  day  went  into  effect  on  January  1, 
1919.  All  elections  thereafter  would  be  held  on  the  basis  of 
equal,  direct,  universal  suffrage  based  on  proportional  repre- 

*It  is  interesting  to  note  that  with  the  exception  of  Barth  all  these 
men  were  members  of  the  Reichstag  before  the  Revolution. 


20  THE  GERMAN  CONSTITUTION 

sentation  for  all  men  and  women  who  had  passed  the  twen- 
tieth birthday,  etc. 

But  diflBculties  arose  soon  between  The  Council  of  Com- 
missars of  the  People  and  the  Executive  Committee  of  the 
Workers  and  Soldiers  Councils  of  Berlin.  Each  of  these  two 
bodies  considered  itself  the  chief  holder  of  sovereignty  and 
launched  proclamations  issuing  orders.  It  became  absolutely 
necessary  to  put  precise  limits  to  their  respective  powers. 
That  was  the  object  of  an  agreement  reached  by  these  two 
bodies  November  22,  1918. 

According  to  the  terms  of  this  agreement  sovereignty  be- 
longed wholly  to  the  Executive  Committee.  The  Council  of 
Commissars  was  to  exercise  executive  power  under  the  perma- 
nent control  of  the  Executive  Committee. 

The  latter  had  the  power  to  nominate  or  recall  members  of 
the  Council  of  Commissars.  In  reality  the  situation  was 
somewhat  different;  for  the  Council  of  Commissars  exercised 
to  some  extent  legislative  powers  according  to  which  it  claimed 
the  right  to  issue  decrees  that  had  the  force  of  laws. 

For  a  month  the  two  bodies  worked  in  this  accord.  Col- 
lisions occurred,  of  course.  The  functionaries  of  the  old  régime 
endured  impatiently  the  supervision  of  the  Councils  of  Work- 
ers and  Soldiers.  Inflaming  rumours  circulated  of  the  extrava- 
gance with  which  these  Councils  managed  the  public  finances. 
Worst  of  all  was  the  increasing  opposition  that  developed  all 
over  the  country  to  the  Executive  Committee  of  Workers  and 
Soldiers  Councils,  which,  consisting  exclusively  of  Berlin 
members,  claimed  to  represent  the  Councils  of  all  Germany 
and  which  acted  in  effect  as  though  it  were  delegated  by  the 
Councils  of  the  whole  country.  The  fact  that  on  November 
23  this  Executive  Committee  had  added  to  itself  a  certain 
nxunber  of  delegates  of  Workers  and  Soldiers  Councils  of 
states  other  than  Prussia,  delegates  who  had  authority  to 
deliberate  in  matters  that  concerned  all  of  Germany,  did  not 


THE  REPUBLIC  OF  THE  COUNCILS         21 

strengthen  the  position  of  the  Executive  Committee.    Mean- 
while, however,  its  machinery  appeared  to  be  functioning. 

2.  The  social  democrats  eliminate  the  independents 
AND  REMAIN  IN  SOLE  CONTROL. — In  the  struggle  that  ensued 
among  socialists,  the  Social  Democrats  brought  to  their  side 
the  support  first  of  individual  states,  then  that  of  a  general 
Congress  of  Workers  and  Soldiers  Councils. 

1.  From  November  10  Ebert  and  his  party  showed  an 
increasing  determination  to  call  a  constituent  assembly.  How- 
ever, they  did  not  attempt  to  act  upon  it  at  once,  being  re- 
strained by  the  strength  that  still  lay  in  the  hands  of  the 
Councils.  But  on  November  25  under  the  name  of  "the  con- 
ference of  German  Federated  States"  there  was  held  at  Berlin 
a  meeting  of  representatives  of  the  revolutionary  governments 
of  several  states.  It  was  presided  over  by  the  Commissar  of 
the  People,  Ebert. 

Speaking  of  the  forthcoming  constitution,  Ebert  declared, 
"The  system  of  collaboration  between  the  government  of  the 
Reich  and  the  Federated  States,  which  should  be  very  defi- 
nitely specified,  must  be  established  by  a  National  Assembly. 
The  government  has  firmly  resolved  to  call  this  National 
Assembly  with  the  least  delay.  Till  then  nothing  but  a  pro- 
visional agreement  can  be  effected  between  the  Reich  and  the 
States."  In  the  course  of  the  discussion  the  most  conflicting 
opinions  possible  were  expressed;  but  finally  the  immense 
majority  of  the  delegates  present  adopted  the  following  two- 
fold resolution: 

"It  is  to  a  National  Assembly  that  the  power  of  establishing 
the  constitution  of  the  Reich  should  be  entrusted.  Till  such 
a  time,  however,  the  Workers  and  Soldiers  Councils  are  the 
representatives  of  the  will  of  the  people." 

Strengthened  by  this  decision  the  Council  of  the  Com- 
missars of  the  People  promulgated  on  November  30  a  decree 
for  the  election  of  a  National  Assembly. 


22  THE  GERMAN  CONSTITUTION 

2.  It  was  the  general  congress  of  Workers  and  Soldiers 
Councils  at  its  meetings  in  Berlin  from  December  16  to  20, 
more  than  any  other  factor,  that  gave  the  Social  Democrats 
the  opportunity  they  had  been  seeking  to  disembarrass  them- 
selves of  the  Executive  Committee  of  the  Workers  and  Soldiers 
Councils  of  Berlin;  and  by  this  means  to  deliver  a  decisive 
blow  at  the  system  of  Councils  as  a  whole.  The  Social  Demo- 
crats had  an  overwhelming  majority  in  this  congress  and  the 
delegates,  well  disciplined  and  little  familiar  with  parliamen- 
tary debate,  carried  out  punctiliously  the  instructions  which 
had  been  given  them  by  the  ofiBcial  spokesmen. 

The  congress  passed  a  number  of  important  resolutions: 

a.  The  Councils  or  Soviet  System  is  rejected. — On  Decem- 
ber 19  by  a  vote  of  334  against  98  the  congress  rejected  the 
motion  made  by  Daumig  that  "under  all  circumstances  the 
Councils  system  shall  be  adhered  to  as  the  basis  of  the 
Socialist  Republic  in  the  sense  that  the  Councils  shall  possess 
supreme  legislative,  executive  and  judiciary  powers." 

b.  The  Council  of  the  Commissars  of  the  People  is 
strengthened. — The  congress,  which  declared  itself  invested 
with  complete  political  power,  delegated  legislative  and  execu- 
tive power  to  the  Council  of  Commissars  of  the  People  up  to 
the  time  the  National  Assembly  convened.  Further,  it 
nominated  a  central  committee  (Zentralrat)  of  the  Workers 
and  Soldiers  Councils  of  Germany,  consisting  of  twenty-seven 
members  which  was  to  exercise  parliamentary  control  over  the 
German  and  Prussian  cabinets;  that  is  to  say,  according  to  the 
ofi&cial  explanation  of  Commissar  of  the  People  Haase,  all 
projects  of  law  must  be  submitted  by  the  Council  of  the 
Commissars  of  the  People  to  the  Central  Committee  and  dis- 
cussed by  them.  The  Central  Conmiittee  had  the  right  to 
appoint  and  recall  Commissars  of  the  People  for  Prussia  and 
for  the  Reich.  Finally  the  Council  of  the  Commissars  of  the 
People  was  to  appoint  to  each  Secretary  of  State  two  delegates, 
a  Social  Democrat  and  an  Independent,  who  would  be  charged 


THE  REPUBLIC  OF  THE  COUNCILS        23 

with  the  conduct  of  affairs  within  the  ministries.  As  for  the 
Executive  Committee  of  the  Workers  and  Soldiers  Councils 
of  Berlin  it  was  limited  by  the  congress  to  authority  only  in 
matters  pertaining  to  the  Berlin  group. 

c.  Elections  for  the  National  Assembly  are  held  January 
19,  1919. — The  victory  of  the  Social  Democrats  was  complete. 
The  Independents,  because  of  the  small  number  of  representa- 
tives they  had  elected,  refused  to  form  a  part  of  the  Central 
Committee,  which  thereupon  consisted  only  of  Social  Demo- 
crats and  was  presided  over  by  Leinert,  then  by  Max  Cohen, 
both  very  moderate  in  their  opinions.  The  conflict  between 
the  Executive  Committee  of  Workers  and  Soldiers  Councils 
of  Berlin  and  the  Central  Committee  never  gave  the  govern- 
ment any  trouble. 

But  the  Independents  and  the  Spartacists  had  not  at  all 
decided  to  give  up  the  game,  for  they  believed  themselves  to 
be  at  least  ''masters  of  the  street."  And  Christmas  week  of 
1918  in  Berlin  was  a  bloody  one.  A  detachment  of  marines 
which  had  installed  itself  in  the  royal  castle  and  had  refused 
to  leave  it  in  spite  of  the  orders  of  the  government  of  Prussia 
had  tried  to  capture  Commissars  of  the  People,  Ebert  and 
Landsberg,  to  keep  them  as  hostages  against  the  non-payment 
of  wages  due  them.  Their  attempt  failed  and  troops  were 
summoned  by  the  government  to  force  the  sailors  to  leave  the 
castle.  Bloody  fights  ensued  in  Berlin  which  lasted  till 
Christmas. 

These  events  produced  a  crisis  in  the  government.  On 
December  29  the  Independents,  Haase,  Dittmann,  and  Barth, 
resigned  from  the  Council  of  the  Commissars  of  the  People; 
whereupon  the  remaining  three  Commissars  immediately 
handed  their  resignations  to  the  Central  Committee.  The 
latter  reappointed  the  three  Social  Democrats  and  completed 
the  Government  by  adding  to  them  three  new  Commissars, 
all  Social  Democrats,  Noske,  Wisscl,  Lobe.  Lobe  declined  and 
his  post  remained  vacant;  but  Noske  and  Wisscl  entered  the 


24  THE  GERMAN  CONSTITUTION 

Government.  Scheidemann  replaced  Haase  as  co-president 
with  Ebert. 

The  Independents  and  the  Communists  made  another  at- 
tempt. On  January  3,  the  Independents  who  had  entered  the 
Government  of  Prussia  handed  in  their  resignations.  But 
Eichhorn,  since  the  revolution  president  of  the  Berlin  police, 
refused  to  resign  his  powers  and,  being  recalled,  refused  to 
relinquish  his  post.  That  was  the  signal  for  a  veritable  in- 
surrection which  had  been  called,  not  without  reason,  "the 
second  revolution."  Troops  of  Spartacists  met  in  bloody 
encounters  in  the  streets  with  the  troops  of  Noske  and  the 
afifair  ended  with  the  assassination  of  Karl  Liebknecht  and 
Rosa  Luxemburg, 

When,  three  days  later  the  elections  for  the  National  As- 
sembly took  place,  Germany  found  itself  under  an  exclusively 
Social  Democratic  Government. 

SECTION  II 

THE  NATIONAL  CONSTITUENT  ASSEMBLY 

The  National  Assembly  elected  on  January  19,  1919,  had 
as  its  foremost  task  the  conclusion  of  peace  and  the  creation 
of  a  new  constitution  for  Germany.  But  in  view  of  the  prob- 
lems that  it  was  confronted  with,  it  will  be  diflBcult  to  under- 
stand precisely  how  it  was  led  to  take  this  or  that  position 
and  to  know  how  to  reconcile  the  intent  of  the  different 
resolutions  voted  if  one  does  not  keep  constantly  in  mind  the 
spirit  in  which  they  were  drawn  up,  the  forces  that  met  in  con- 
flict within  the  Assembly,  and  the  proportion  of  strength 
they  bore  to  one  another — if  one  does  not  follow  at  least  in  its 
ensemble  the  long  process  of  elaboration  in  the  midst  of  which 
the  work  of  the  Assembly  was  accomplished. 

1. — THE  COMPOSITION  OF  THE  ASSEMBLY. 

The  Constituent  Assembly  had  been  elected  according  to 
what  was  perhaps  the  most  democratic  suffrage  ever  known. 


NATIONAL  CONSTITUENT  ASSEMBLY      25 

All  Germans  were  electors,  men  and  women,  soldiers  and 
officers,  poor  and  feeble,  provided  they  had  passed  the  twen- 
tieth birthday.  All  electors  were  eligible  to  vote  who  had 
been  Germans  for  at  least  a  year. 

The  election  took  place  on  the  basis  of  general  tickets  which 
could  not  be  "split,"  that  is,  an  elector  could  not  vote  for 
candidates  of  different  tickets;  but  facility  was  offered  for 
parties  to  present  lists  in  common. 

The  distribution  of  seats  followed  the  system  of  proportional 
representation  known  under  the  name  of  Hondt. 

These  elections  sent  to  the  Assembly  423  deputies,  of  whom 
39  were  women. 

At  the  extreme  right  were  the  German  Nationalists 
(Deutschnationalen)  with  forty-two  members.  They  were 
the  former  Conservatives  of  whom  the  least  one  can  say  is 
that  they  had  learned  but  little  from  the  war.  It  was  the 
party  of  the  big  landed  proprietors  and  the  big  manufacturers. 
Politically  they  declared  themselves  in  December,  1918,  in 
favour  of  the  restoration  of  the  monarchy  and  willing  to  accept 
a  parliamentary  monarchy.  Economically  they  did  not  ask 
a  single  reform.  Reactionary  in  politics  they  were  in  economic 
matters  strongly  conservative.  Their  leaders,  Clemens  von 
Delbriick,  former  minister  of  the  Emperor  and  former  chief 
of  the  Emperor's  civil  cabinet,  Diiringer,  raised  their  voices 
whenever  it  was  necessary  to  defend  the  old  régime,  opposing 
all  diminution  in  Prussia's  share  of  the  government,  and  com- 
batting every  democratic  institution. 

To  the  left  of  them  sat  twenty-two.members  of  the  German 
People's  Party  (Deutsche  Volkspartei).  The  name  is  new; 
their  ideas  resembled  those  of  the  former  National-Liberals.^ 
It  was  the  party  of  business  men.  Of  the  future  form  of 
government  they  said  nothing.  In  fact,  most  of  them  re- 
mained monarchists,  but  that  was  a  minor  question.    Their 

*See  Jean  de  Granvilliera,  Essai  sur  le  libéralisme  allemand,  Paris, 
1914. 


26  THE  GERMAN  CONSTITUTION 

main  concern  was  to  establish  in  a  tranquil  and  well  regu- 
lated state  freedom  of  commerce  and  a  guarantee  of  protection 
for  private  property.  They  did  not  shut  their  eyes  completely 
to  the  realities  of  the  hour  and  intended  to  scrutinize  certain 
reforms  which  it  would  be  useless  to  oppose;  such  as  new 
governmental  monopolies,  the  participation  of  workers  in 
industry  control,  etc.  They  were  nationalist  in  feeling  and 
would  not  sign  a  peace  except  one  that  safeguarded  the  eco- 
nomic prosperity  of  Germany.  They  were  democrats  in  the 
sense  that  they  were  in  favor  of  a  strict  legal  equality  for  all 
persons.  This  group  was  presided  over  by  Stresemann,  whose 
cleverness  in  manipulating  the  parliamentary  game  was  widely 
recognized. 

Then  came  the  Centre  with  eighty-nine  deputies.  Of  all 
the  parties  it  was  this  one  that  remained  since  its  inception 
most  faithful  to  itself.  Its  programme  had  not  changed.  It 
contained  several  propositions  which  formed  its  solid  frame- 
work and  for  which  the  party  was  prepared  to  fight  with  all 
its  power:  the  union  of  Church  and  State,  confessional  public 
schools,  liberty  of  instruction,  etc.  On  the  political  and  eco- 
nomical problems  of  the  hour  the  Centre  certainly  had  its 
opinions;  but  it  always  ended  by  conceding  whatever  was 
necessary  to  safeguard  the  essential  principles  of  a  religious 
state  and  of  freedom  of  instruction.  Among  those  elected  to 
the  Centre  there  were  Fehrenbach,  who  presided  over  the 
Assembly,  Trimborn,  Professor  Beyerle,  and  Erzberger,  whose 
indefatigable  activities  and  limitless  fertility  of  resources 
assured  him  perhaps  a  preponderant  rôle  in  the  government 
for  some  months,  and  who  as  much  as  the  Minister  of  Finance 
was  to  effect  a  fundamental  reform  in  the  German  fiscal 
system. 

Then  came  seventy-four  Democrats.  Their  party  was  bom 
after  the  revolution  of  1918  of  a  fusion  of  the  old  Progressives 
with  the  group  of  National-Liberals  who  did  not  go  with  the 
Volkspartei.    Their  program  was  that  of  the  classic  liberal- 


NATIONAL  CONSTITUENT  ASSEMBLY      27 

ism:  national  sovereignty,  universal  suffrage,  equality  of  right 
of  all  citizens,  individual  rights,  the  right  of  private  property 
and  commerce.  They  opposed  the  intervention  of  the  State 
except  in  extraordinary  circumstances.  This  party  attempted 
to  group  about  itself  all  Germans  in  favour  of  a  bourgeois  re- 
public, and  was  resolute  in  its  opposition  to  both  reaction 
and  revolutionary  socialism.  This  group  counted  among  its 
members  some  of  the  men  whose  personal  worth  impressed 
itself  on  the  assembly  and  who  played  rôles  perhaps  the  most 
important  in  the  development  of  the  constitution — Haussmann, 
president  of  the  committee  on  the  Constitution;  Frederick 
Naumann,  whose  idealism  had  free  reign  when  he  proposed 
with  Beyerle  the  list  of  fundamental  rights  and  duties  of  the 
Germans;  Dernburg,  Minister  for  the  Colonies  under  the  old 
regime  and  Minister  of  Finance  under  the  Revolution;  Koch 
of  Cassel,  future  minister,  and  others. 

There  were  163  Social  Democrats.  They  formed  the  most 
numerous  group  in  the  Assembly  but,  accustomed  to  the  facile 
negations  of  opposition  they  seemed  little  prepared  for  the 
constructive  rôle,  at  that  time  particularly  difficult,  which 
their  electoral  success  suddenly  called  upon  them  to  exercise. 
Theoretically  they  declared  themselves  faithful  to  the  pro- 
gramme of  Erfurt  and  to  the  Marxian  theory  of  the  class 
struggle.  But  at  the  same  time  they  declared  their  faith  in 
democracy,  opposed  all  dictatorship  and  counted  only  on  uni- 
versal suffrage  and  the  parliamentary  régime  to  effect  their 
socialistic  reforms.  It  is  from  this  Social  Democratic  group 
that  there  came  the  three  Chancellors  who  governed  Germany 
while  the  National  Assembly  sat — Schcidcmann,  Bauer  and 
Hermann  Miiller.  It  is  to  this  group  that  belonged  Legion, 
president  of  the  German  Federation  of  Labour,  Wisscl  who  as 
Minister  tried  in  vain  to  organize  systematic  control  of  busi- 
ness, and  the  Ministers  Noskc,  David,  the  deputy  Sinzheiraer, 
who  drew  up  the  remarkable  report  on  the  Workers  Councils, 
and  others. 


28  THE  GERMAN  CONSTITUTION 

Finally  there  came  the  group  of  Independents  of  whom 
there  were  twenty-two.  They  accused  the  Social  Democrats 
of  having  betrayed  the  cause  of  Socialism.  As  for  their  own 
program  they  did  not  specify  any  measures  more  definite  than 
did  the  Social  Democrats.  They  contented  themselves  with 
demanding  that  socialization  be  inmiediately  commenced  in 
order  to  break  capitalist  domination,  to  promote  production 
to  the  highest  possible  degree  and  to  distribute  the  fruits 
thereof  among  all  citizens.  Their  spokesmen  were  Cohn  and 
Haase,  former  Commissar  of  the  People,  who  was  later  assas- 
sinated in  July,  1919. 

To  sum  up  one  can  present  the  following  table  of  the  forces 
of  the  respective  parties  in  the  National  Assembly  : 

PARTY  VOTES  DEPUTIES 

German  National  People's 

Party 3,200,000  42  (3  women) 

German  People's  Party 1,200,000  22  (1  woman) 

Centre 6,000,000  89  (6  women) 

Democrats i  5,600,000  74  (7  women) 

Social  Democrats 11,400,000  163  (17  women) 

Independents 2,300,000  22  (3  women) 

Other  parties 500,000  9  (2  women) 

Besides  these,  troops  from  the  Western  front  sent  two  depu- 
ties, both  Social  Democrats. 

2. — THE  PROVISIONAL  CONSTITUTION  OF  FEBRUARY  10,  1919. 

The  National  Constituent  Assembly  met  at  Weimar  Febru- 
ary 6,  1919.  It  wisely  avoided  meeting  in  Berlin  where  it 
would  be  tempting  prey  for  organizers  of  revolts  and  insur- 
rections. 

Elected  by  the  people  the  Assembly  incorporated  the  sov- 
ereignty of  the  people.  It  was  the  supreme  power.  That 
power  was  universally  accorded  to  it. 


CONSTITUTION  OF  FEBRUARY  10,  1919       29 

The  first  question  that  had  to  be  dealt  with  by  the  Assem- 
bly was  that  of  a  provisional  government  of  Germany.  It 
was  true  that  a  Constitution  was  to  be  adopted  by  the  Assem- 
bly eventually  ;  but  that  would  be  a  labour  of  several  months 
at  least.  Meanwhile  it  would  be  necessary  for  Germany  to  be 
governed  in  its  internal  affairs  by  some  authority  created  in 
the  spirit  of  democracy,  one  which  could  be  represented 
abroad  by  delegates  of  the  German  people.  A  provisional 
constitution  would  have  to  be  adopted,  and  adopted  at  once. 

On  February  8  Secretary  of  State  of  the  Interior  Preuss 
submitted  a  draft  of  a  provisional  government  of  the  Reich. 
It  was  only  an  improvisation.  Commencing  with  January  25, 
1919,  a  conference  of  more  than  one  hundred  representatives 
of  different  states  met  with  the  Minister  of  the  Interior  to 
consider  the  project  of  this  provisional  constitution.  The 
draft  presented  by  Preuss  was  approved  by  them.  This  gave 
assurance  that  no  fundamental  objections  would  be  raised. 
On  the  other  hand,  to  assure  a  quick  vote  on  it  the  author  of 
the  project  had  prudently  avoided  all  vexing  questions  whose 
inmiediate  settlement  was  not  indispensable  ;  and  on  the  ques- 
tions which  he  had  to  treat  he  wisely  did  so  in  the  spirit  of 
compromise.  Thanks  to  these  precautions  the  draft  by  Preuss 
was  adopted  on  February  10.    It  dealt  with  these  four  points: 

1.  Constitutional  laws. — The  National  Assembly  was  to 
retain  all  power  in  dealing  with  this  province.  Elected  above 
all  to  furnish  Germany  with  a  constitution  this  was  its 
essential  work. 

Only  the  Assembly  could  decide  constitutional  questions 
and  could  do  so  without  consulting  anybody  else.  Meanwhile, 
however,  although  keeping  control  the  members  could  limit 
themselves,  if  they  wished,  in  authority — and  this  is  one  of  the 
instances  in  the  provisional  constitution  characterized  by  its 
spirit  of  compromise — if  this  limitation  seemed  to  them  in  the 
general  interest  and  necessary  to  the  prompt  accomplishment 


30  THE  GERMAN  CONSTITUTION 

of  their  work.  In  fact,  the  National  Assembly  limited  itself 
in  this  matter  of  the  constitution  only  on  one  point,  a  funda- 
mental one — the  territorial  status  of  the  states.  According 
to  Article  4,  paragraph  2,  of  the  law  dealing  with  that  ques- 
tion "the  territories  of  the  component  republics  cannot  be 
modified  except  by  their  consent."  This  meant  that  the  sov- 
ereign National  Assembly  did  not  permit  even  itself  to  change 
the  territorial  map  of  Germany.  Minister  Preuss  explained 
to  the  Assembly  that  he  had  to  make  this  concession,  for  they 
could  not  with  a  stroke  of  the  pen  and  by  a  simple  decision 
change  the  boundaries  of  the  respective  states  without  their 
consent.  This  provision  was  necessary  to  reassure  the  states, 
being  given  especially  in  view  of  the  announced  intentions  of 
the  government  of  the  Reich  on  a  territorial  regrouping  and  a 
partition  of  Prussia.  But  it  was  distinctly  specified  by  Preuss 
that  this  provision  would  hold  only  until  the  definitive  action 
on  the  Constitution  by  the  Assembly.  For  in  this  Constitu- 
tion the  National  Assembly  could  of  its  own  accord  and  with- 
out limitations  take  whatever  decision  it  wished.  In  other 
words  after  the  definite  adoption  of  the  Constitution  the  states 
could  no  longer  invoke  article  4,  paragraph  3  of  the  law  of 
February  10,  1919,  in  order  to  oppose  the  operation  of  article 
18  of  the  Constitution  of  Weimar,^  in  case  an  individual 
state  were  so  minded. 

2.  Ordinaky  laws. — The  National  Assembly  had  other 
work  to  do  besides  the  Constitution.  They  recognized  (Arti- 
cle 1  of  the  law  of  February  10,  1919)  that  beside  the  Con- 
stitution they  had  to  vote  "other  urgent  laws  for  the  Reich." 
But  here  in  contrast  to  the  procedure  in  the  adoption  of  con- 
stitutional laws  the  National  Assembly  did  not  adopt  laws 
except  in  agreement  with  the  representatives  of  the  individual 
states.  No  project  could  become  a  law  until  it  was  accepted 
both  by  the  representatives  of  the  individual  states  and  by 

*See  page  73,  et  seq.,  of  this  book. 


CONSTITUTION  OF  FEBRUARY  10,  1919       31 

the  National  Assembly.  For  this  purpose  the  law  of  February 
10,  1919,  created  a  Commission  of  States. 

This  Commission  recalled  in  several  respects  the  old  Bun- 
desrat  but  differed  fundamentally  in  certain  other  respects. 
It  was  composed  of  representatives  of  all  the  German  states 
whose  governments  were  based  on  the  confidence  in  them  of 
their  representative  assemblies  elected  by  universal  suffrage. 
Each  state  had  at  least  one  vote;  but  the  more  important 
states  could  have  additional  votes  ;  one  vote  for  every  million 
inhabitants,  and  a  fraction  in  excess  would  be  counted  as  a 
supplementary  vote  provided  that  fraction  was  equal  at  least 
to  the  number  of  inhabitants  of  the  least  populous  state  in  the 
Reich.  No  state  was  allowed  more  than  two-thirds  of  the 
total  number  of  votes.  Some  writers  find  this  reform  impor- 
tant. "The  traditional  proportion  of  representation  is  broken," 
writes  Apelt  in  "Das  Werden  der  neuen  Reichsverfassung, 
Deutsche  Juristen  Zeitung,"  1919,  p.  205.  "It  has  been  re- 
placed by  the  modern  principle  of  the  distribution  of  influence 
according  to  the  number  of  inhabitants."  But  we  must  not 
delude  ourselves.  The  application  of  paragraph  2  of  the 
law  of  February  10  resulted  in  the  following:  Prussia  had  19 
votes,  Bavaria  7,  Saxony  5,  Wurtemberg  3,  the  Grand  Duchy 
of  Baden  3,  the  Grand  Duchy  of  Hesse  2;  the  other  states  one 
each,  in  all  58,  and  after  the  fusion  of  the  two  states  of  Reuss, 
57.  Thus  Prussia  had  two  votes  more  than  in  the  Bundesrat, 
Bavaria  and  Saxony  each  one  vote  more,  Wurtemberg,  Hesse, 
Mecklenburg-Schwerin  and  Brunswick  each  at  least  one  vote. 
If  one  considers  the  loss  of  Alsace-Lorraine  and  the  disap- 
pearance of  the  two  Reuss  states  it  is  quite  remarkable  to  note 
that  in  the  Bundesrat  and  in  the  Commission  of  States  the 
total  number  of  votes  was  exactly  the  same  and  the  distri- 
bution almost  the  same  in  both. 

However,  the  Commission  of  States  differed  in  other  re- 
spects from  the  Bundesrat,  especially  in  authority.  It  is  true 
that  as  formerly  no  law  could  be  enacted  except  with  the 


32  THE  GERMAN  CONSTITUTION 

approval  of  the  Assembly.  But  now  the  centre  of  gravity  of 
political  power  passed  from  the  Assembly  of  States  to  the 
popular  assembly.  From  this  came  the  following  conse- 
quences: formerly  if  a  projected  law  emanating  from  the 
Presidency  of  the  Empire  did  not  secure  a  majority  in  the 
Bundesrat  it  could  not  be  considered  by  the  Reichstag,  and 
was  thereby  definitely  buried.  Whereas  now  the  government 
could  submit  for  decision  by  the  National  Assembly  a  project 
which  had  been  rejected  by  the  Commission  of  States.  For- 
merly, too,  in  a  disagreement  between  the  two  assemblies 
over  a  projected  law  which  the  Reichstag  had  accepted  but 
the  Bundesrat  had  rejected,  the  last  word  rested  with  the 
negative  party,  that  is  to  say,  the  Bundesrat,  where  naturally 
the  project  was  buried.  Now,  however,  the  government  was 
never  bound  by  a  decision  of  the  majority  of  the  Commission 
of  States  and  it  could  always  bring  a  project  up  again  before 
the  National  Assembly,  which  had  been  defeated  in  the  Com- 
mission. The  members  of  the  government  of  the  Reich  and 
those  of  the  Commission  of  States  had  the  right  to  participate 
in  the  National  Assembly  and  defend  their  respective  points 
of  view;  but  it  was  the  National  Assembly  that  always  made 
the  final  decision.  If,  however,  a  discord  between  the  two 
Assemblies  could  not  be  broken  the  President  of  the  Reich  had 
the  right  to  submit  this  difference  to  a  popular  referendum  for 
decision.  This  situation,  however,  has  not  as  yet  presented 
itself. 

The  differences  between  the  former  Bundesrat  and  the  new 
Commission  of  States  were  considerable.  The  champions  of 
a  united  Reich  criticized  the  Commission  as  an  obstacle  to  the 
foundation  of  a  united  German  Republic  and  this  objection 
seemed  from  their  point  of  view  justifiable.  It  must  be  noted 
also  that  the  provisional  constitution  does  not  specify  which, 
the  state's  parliament  or  its  government,  in  each  member  state 
nominates  the  delegates  to  the  Commission.  We  know  only 
that  the  members  of  the  Conmiission  of  States  had  an  impera- 


CONSTITUTION  OF  FEBRUARY  10,  1919      33 

tive  mandate,  for  its  representatives  defended  the  point  of 
view  of  their  governments. 

A  law  became  operative  when  it  was  adopted  by  both  the 
National  Assembly  and  the  Commission  of  States. 

3.  The  president  of  the  reich. — The  Provisional  Consti- 
tution placed  at  the  head  of  the  Reich  a  president. 

The  president  of  the  Reich  had  to  be  elected  by  an  absolute 
majority  of  the  National  Assembly.  He  was  to  remain  in 
power  until  the  inauguration  of  the  president  elected  in  con- 
formity with  the  permanent  constitution. 

To  avoid  discussions  which  would  retard  the  adoption  of 
the  law  and  not  to  have  to  specify  the  powers  of  the  presi- 
dent the  provision  attributed  to  him  generally  the  powers  of 
a  chief  of  state  in  a  modern  republic. 

However,  the  Provisional  Constitution  specifically  described 
the  authority  of  the  president  on  certain  particular  points 
which  because  of  special  circumstances  and  on  account  of 
German  traditions  were  especially  delicate.  The  right  to  de- 
clare war  and  to  conclude  peace  was  taken  away  from  him 
and  given  to  the  National  Assembly.  He  represented  the 
Reich,  however,  in  foreign  relations,  accredited  and  received 
ambassadors  and  signed  treaties.  But  in  this  last  respect  his 
right  was  limited  by  two  restrictions.  He  could  not  without 
the  consent  of  the  National  Assembly  and  of  the  Commission 
of  States  conclude  any  treaty  containing  matters  on  which 
the  authority  rested  with  these  bodies;  and  were  Germany 
to  enter  a  league  of  nations  that  excludes  secret  treaties,  all  the 
treaties  with  states  which  are  members  of  that  league  would 
have  to  be  submitted  to  the  approval  of  the  National  Assembly 
and  the  Conmiission  of  States.  In  other  words,  secret  treaties 
were  in  principle  forbidden;  but  in  order  not  to  place  Germany 
in  a  disadvantageous  position  with  regard  to  other  states  it 
was  specified  that  this  prohibition  would  be  effective  only  in 
regard  to  treaties  with  other  states  that  forbade  secret  treaties. 


34  THE  GERMAN  CONSTITUTION 

4.  The  ministers. — The  president  of  the  Reich  nominated 
a  ministry  charged  with  the  government  of  the  Reich. 

The  law  specified  nothing  on  the  organization  of  the  min- 
istry. However,  there  were  several  provisions  which  clearly 
indicated  an  essentially  parliamentary  regime.  Thus  minis- 
ters could  remain  in  power  only  as  long  as  they  had  the  con- 
fidence of  the  Assembly.  Decrees  and  ordinances  of  the  presi- 
dent were  operative  only  when  signed  by  a  minister.  The 
ministers  were  responsible  to  the  National  Assembly  for  the 
conduct  of  their  departments. 

The  provisional  constitution  of  February  10  became  oper- 
ative immediately  upon  its  adoption.^  Two  series  of  acts 
thereupon  naturally  followed. 

First  the  authorities  who  received  their  powers  from  the 
Revolution  resigned  these  into  the  hands  of  the  National  As- 
sembly. On  February  10,  Commissar  of  the  People  Scheide- 
mann  declared  before  the  Assembly,  "Since  the  National  As- 
sembly is  in  session  and  the  Provisional  Constitution  is 
adopted  the  historic  mission  which  had  been  entrusted  to  us 
as  a  provisional  government  is  terminated.  We  return  the 
powers  which  we  have  received  from  the  Revolution  into  the 
hands  of  the  National  Assembly." 

The  next  day,  February  11,  there  was  read  before  the 
Assembly  a  letter  from  the  Central  Committee  of  the  German 
Socialist  Republic  in  which  three  propositions  should  be  noted. 
First,  the  Central  Committee  returned  to  the  German  National 
Assembly  the  powers  which  it  had  held  by  virtue  of  the 
authority  given  it  by  the  Congress  of  Workers  and  Soldiers 

*  German  jurists  get  much  pleasure  in  pointing  out  the  following 
constitutional  curiosity:  the  condition  necessary  for  a  law  enacted  by  a 
parliament  to  become  operative  is  that  this  law  shall  be  promulgated, 
that  is  to  say,  authenticated  and  published.  But  these  operations  sup- 
pose a  government.  Now,  the  law  of  February  10,  created  the  govern- 
ment; but  this  law  could  not  be  promulgated  by  a  government  which 
this  very  promulgation  would  create.  It  was  decided,  therefore,  that 
the  law  should  become  operative  immediately  and  be  authenticated  by 
the  President  of  the  National  Assembly. 


SUPPLEMENTARY  LAWS  35 

Councils.  Secondly,  it  demanded  the  incorporation  of  the 
Workers  and  Soldiers  Councils  in  the  future  Constitution  of 
the  Empire  to  strengthen  the  representation  of  the  workers 
and  to  defend  the  interests  of  the  producers  as  well  as  to  assure 
a  popular  organization  of  the  Empire's  armed  forces.  Thirdly, 
it  opposed  with  utmost  energy  the  dangerous  reappearance 
of  the  rights  of  sovereignty  of  individual  states  when  these 
rights  went  beyond  the  domain  of  questions  affecting  the 
autonomy  and  the  culture  of  the  states. 

There  remained  the  task  of  organizing  the  new  government 
in  conformity  with  the  provisions  of  the  law.  On  February 
11,  Commissar  of  the  People  Ebert  was  elected  President  of 
the  Reich  by  a  vote  of  277  out  of  a  possible  328.  He  resigned 
as  deputy  and  named  a  ministry  headed  by  Scheidemann.  As 
David,  who  had  been  elected  President  of  the  Assembly,  was 
also  appointed  member  of  the  Ministry  without  portfolio  he 
was  replaced  as  President  of  the  National  Assembly  by 
Fehrenbach  on  February  12. 

3. — THE  ADOPTION  OF  THE  CONSTITUTION  AND  THE 
SUPPLEMENTARY    LAWS. 

The  elaboration  of  the  permanent  Constitution  lasted  nearly 
seven  months.  There  were  preliminary  drafts,  drafts  and 
supplementary  drafts;  which  were  studied  in  conference  with 
the  states,  in  sub-conmiittees  and  committees,  and  in  full 
session  of  the  National  Assembly  with  countless  changes  and 
modifications  up  to  the  last  minute. 

The  man  who  was  constantly  in  the  breach  throughout  all 
this  labour  and  who  may  be  considered  the  principal  author  of 
the  Constitution  was  Professor  Preuss. 

Before  the  Revolution  he  belonged  to  the  Progressive  Party  ; 
after  which  he  joined  the  Democrats.  Under-secretary  of 
State  for  the  Interior,  on  February  15,  1918;  Minister  of  the 
Interior  in  Scheidemann's  cabinet  of  February,  1919;  repre- 


36  THE  GERMAN  CONSTITUTION 

sentative  of  the  government  at  the  National  Assembly  to  dis- 
cuss the  Constitution  when,  in  June,  1919,  he  left  office;  it  was 
on  him  from  the  beginning  to  end  that  the  chief  burden  of 
these  discussions  rested.  Master  of  constitutional  law  he 
show^ed  himself  in  politics  essentially  a  realist.  He  fought 
stubbornly  for  the  ideas  he  put  forward  in  his  first  draft — 
the  necessity  of  unifying  the  Reich  and  dismembering  Prussia, 
the  need  of  creating  confidence  in  democracy,  the  superiority 
of  a  parliamentary  régime.  He  fought  for  these  to  the  very 
end  with  vigour  of  argument  and  such  fertility  of  resources 
that  the  greater  part  of  his  ideas  survived  every  attack.  Cer- 
tainly the  definitive  text  of  the  Constitution  is  quite  different 
from  his  original  project;  Preuss  did  not  underestimate  the 
forces  and  influences  with  which  he  had  to  deal;  nevertheless 
he  won  great  support  on  his  principal  issues  and  he  is  really 
the  chief  artisan  of  the  work  of  Weimar. 

The  Constitution  was  adopted  on  July  31  by  a  vote  of 
262  for  and  75  against.  Those  who  voted  against  it  were  the 
German  Nationalists,  the  German  People's  Party,  The  Inde- 
pendents, The  Bavarian  Peasant  Union,  and  several  members 
of  the  Bavarian  People's  Party,  among  them  Dr.  Heim. 

It  was  promulgated  and  published  on  August  11,  1919,  and 
became  operative  at  once. 

Having  concluded  peace  and  adopted  the  Constitution  the 
National  Assembly,  it  would  seem,  should  have  dissolved.  But 
it  did  not.  It  had  the  authority  to  fix  the  duration  of  its 
mandate.  The  Assembly  considered  that  its  work  was  not 
finished  on  August  11,  1919,  two  tasks  still  remaining  to  be 
accomplished;  the  first  of  these  to  draw  up  and  pass  the 
principal  laws  needed  for  the  application  of  the  constitution. 
The  latter  in  a  number  of  its  provisions  necessitated  the  pass- 
ing of  a  series  of  special  laws  and  ordinary  laws  regulating 
details  which,  in  the  course  of  the  deliberations  on  the  Con- 
stitution, the  members  could  not  find  time  to  enact  or  on 
which  they  had  not  been  able  to  agree.    Among  such  were 


SUPPLEMENTARY  LAWS  37 

laws  regulating  the  election  of  the  Reichstag  and  of  the  Presi- 
dent of  the  Reich,  laws  on  initiative  and  referendum,  on  the 
state  of  siege,  the  army,  Workers  Councils,  and  Economic 
Councils,  laws  regulating  the  transfer  of  railroads  and  postal 
systems  of  the  various  states  to  the  control  of  the  Reich,  etc. 

The  Assembly  in  addition  considered  itself  bound  to  study 
and  pass  laws  of  a  character  not  necessarily  constitutional 
but  urgently  needed  by  the  Reich.  In  the  front  rank  in 
importance  were  the  laws  designed  to  create  the  financial 
resources  of  which  the  Reich  had  great  need  in  order  to  meet 
the  enormous  charges  imposed  upon  it  by  the  treaty  of  peace, 
the  losses  of  five  years  of  war  and  the  increased  public  ex- 
penditure. It  was  also  urgent  to  enact  laws  governing  pen- 
sions and  indemnities  to  the  wounded,  the  mutilated,  and  the 
widows  of  the  war,  etc. 

But  from  the  moment  the  Constitution  entered  into  force 
on  August  11,  Germany  was  under  a  new  constitutional 
regime.  It  was  no  longer  the  régime  of  the  Provisional  Con- 
stitution of  February  10,  1919;  that  Constitution  was  abol- 
ished by  the  definitive  one.  Nor  had  it  as  yet  entered  on  the 
complete  régime  of  the  definitive  Constitution;  for  that  pro- 
vided for  a  Reichstag,  and  no  one  would  dream  of  calling  a 
Reichstag  to  sit  at  the  same  time  as  the  National  Assembly. 
It  was  a  transitional  régime;  from  August  12,  1919,  to  June  6, 
1920,  the  Constitution  of  August  11  was  in  force  but  the 
National  Assembly  performed  the  function  of  the  Reichstag, 
and  the  President  of  the  Reich,  elected  by  the  National 
Assembly,  remained  in  ofiice  until  the  people  should  elect  his 
successor  (Article  180  of  the  Constitution) . 

In  conformity  with  this  decision  on  August  21,  1919,  Presi- 
dent of  the  Reich,  Ebert,  took  the  oath  of  allegiance  to  the 
new  Constitution  before  the  National  Assembly  in  the  course 
of  its  last  session  at  Weimar. 

From  September  30  on,  the  Assembly  sat  in  Berlin  in  the 
palace  of  the  Reichstag,  where  it  discussed  and  passed  im- 


38  THE  GERMAN  CONSTITUTION 

portant  financial  legislation,  which  included  "a  law  on  the 
income  tax";  another  "on  a  consumption  tax  on  liquors";  and 
still  others  dealing  with  "factory  councils  and  with  the  relief 
of  public  distress  throughout  the  Reich." 

In  the  early  part  of  March,  1920,  the  parties  of  the  Right, 
who  hoped  by  means  of  new  elections  to  obtain  considerable 
increase  in  strength,  submitted  a  proposal  in  which  the  Reich 
was  asked  to  make  known  at  once  what  projects  for  laws  it 
expected  to  submit  to  the  Assembly  before  its  dissolution; 
and  demanding  that  the  Assembly  submit  as  soon  as  possible 
proposals  regulating  the  elections  to  the  Reichstag,  the  elec- 
tion of  the  President,  on  initiative  and  referendum;  and  in 
addition  proposing  that  the  Assembly  declare  itself  dissolved 
on  May  1,  1920.  This  motion  was  defeated  on  March  10  after 
the  Minister  of  Interior,  Koch,  had  indicated  the  laws  which 
still  remained  to  be  enacted.  He  insisted  on  the  necessity 
of  a  profound  study  of  the  project  of  the  law  governing  the 
election  of  the  Reichstag;  and  that  the  first  Reichstag  of  the 
Republic  should  not  be  elected  according  to  the  provisions  of 
a  temporary  and  little  studied  law.  He  declared  that  the 
National  Assembly  could  not  be  dissolved  nor  the  elections 
held  before  the  autumn  of  1920. 

But  two  days  later  came  the  putch  of  Kapp  and  Liittwitz. 
Berlin  fell  into  the  hands  of  a  military  faction  who  announced 
openly  their  determination  to  bring  back  the  old  régime.  The 
regular  government  fled  to  Stuttgart,  where  it  hastily  con- 
voked the  National  Assembly.  A  general  strike  was  declared 
everywhere.  Defeated  by  this,  Kapp  and  Liittwitz  fled  and 
the  regular  government  came  back  to  Berlin.  But  the  workers 
refused  to  resume  work  without  receiving  first  the  guarantees 
they  considered  necessary  against  the  return  of  the  military 
dictatorship.  Then  followed  also  troubles  in  the  Ruhr  and  the 
occupation  of  German  cities  on  the  right  bank  of  the  Rhine 
by  Franco-Belgian  troops. 

All  these  events  were  too  important  and  upset  too  pro- 


SUPPLEMENTARY  LAWS  39 

foundly  the  political  situation  to  make  it  feasible  to  go  on 
without  an  immediate  consultation  with  the  people  of  Ger- 
many. Therefore,  after  hastily  enacting  the  last  of  the  imme- 
diately urgent  laws,  particularly  electoral  provisions,  the 
Assembly  dissolved  at  the  end  of  May,  1920. 


CHAPTER    n 
TOWARD    A    UNITARY    STATE 

The  first  question  with  which  the  National  Assembly  found 
itself  confronted  and  which  had  to  be  decided  was  whether 
the  German  Reich  was  to  remain  a  federated  state  or  whether 
it  was  to  become  a  unitary  state;  or,  supposing  that  an  in- 
termediate solution  were  obtainable,  to  what  extent  it  could 
partake  of  the  characteristics  of  one  or  the  other  type  of  state. 

The  unitary  state  possesses  an  undivided  and  exclusive 
sovereignty.  There  is  unity  of  law,  of  power  and  of  will  with 
one  Constitution,  one  administration  and  one  authority.  The 
type  of  such  a  unitary  state  is  France.  To  the  unitary  state 
is  opposed  the  composite  state  in  which  co-exist  several  sov- 
ereignties, those  of  the  member  states  as  well  as  that  of  the 
central  government. 

For,  there  are  two  principal  types  of  federated  states:  the 
confederation  of  states,  which  has  as  its  basis  an  international 
treaty  and  the  expression  of  whose  will  is  only  the  siun  total 
of  the  wishes  of  its  member  states;  each  component  state 
retains  its  sovereignty,  but  certain  attributes  of  that  sov- 
ereignty are  exercised  in  common  through  the  confederate 
organs.  The  other  type  is  the  federal  state,  which  has  as  its 
basis  a  constitution  and  which  possesses  a  sovereignty  neces- 
sary for  the  performance  of  its  duties,  the  exercise  of  its  rights 
and  its  independent  will. 

But  it  goes  without  saying  that  these  concepts  are  essen- 
tially relative.  Between  the  unitary  state  and  the  confedera- 
tion of  states  lies  a  whole  series  of  state  types,  one  merging 
by  imperceptible  nuances  into  the  other,  types  which  differ  one 

40 


TOWARD  A  UNITARY  STATE  41 

from  another  according  to  the  extent  to  which  the  member 
states  are  called  upon  to  collaborate  in  the  formation  of 
the  common  will.  Further,  the  federal  state  is  never  static,  in 
the  sense  that  its  institutions  never  cease  to  change,  tending 
either  toward  unitarism — that  is  to  say,  toward  the  tightening 
of  the  federating  bonds  or  even  toward  their  disappearance 
through  the  complete  fusion  of  the  component  states;  or  tend- 
ing toward  federalism,  that  is  to  say,  toward  a  loosening  of 
the  bonds,  or  even  their  disappearance  by  the  dissolution  of 
the  composite  state. 

There  are  undoubtedly  in  every  composite  state  at  the  same 
time  tendencies  of  both  kinds.  Theoretically  they  may  even 
act  as  balances  to  one  another.  But  this  equilibrium  is  never 
completely  realized  and  according  as  one  of  these  tendencies 
gains  over  the  other,  the  composite  state  tends  more  or  less 
rapidly  toward  unitarism  or  toward  federalism.^ 

Before  the  war  the  German  Empire  was  a  federated  state 
with  unitary  tendencies.  Since  the  war  these  tendencies  have 
strengthened.  For,  the  downfall  of  the  Empire  and  its  army, 
the  economic  catastrophe  which  followed  the  war  and  aggra- 
vated the  revolution,  the  separatist  tendencies  which  have 
shown  themselves  here  and  there  on  German  soil,  and  the 
financial  burdens  which  have  weighed  on  Germany  all  have 

'  These  concepts  of  "unitarism"  and  "federalism"  must  be  compared 
with  "centralism"  and  "particularism,"  which  correspond  to  them,  but 
which,  nevertheless,  also  differ  from  them.  When  one  speaks  of  "par- 
ticularism" one  means,  beyond  the  legal  and  political  differences  which 
may  exist  between  the  member  states  of  a  federated  state,  the  pecu- 
liarities of  race,  special  traits  of  culture,  geographic  and  ethnographic 
characteristics  which  give  to  populations  their  own  stamp  and  a  distinct 
collective  sentiment.  Political  "particularism"  and  federalist  tendencies 
may  co-exist  naturally;  but  "particularism"  is  not  necessarily  anti- 
centralistic  :  a  "particularism"  inspired  by  the  love  of  a  little  fatherland 
and  its  individuality  gives  to  the  population  a  certain  national  con- 
sciousness which  is  not  necessarily  antagonistic  to  the  establishment  of 
a  strong  central  power.  On  the  other  hand  "unitarism,"  if  it  preserves 
for  the  state  the  character  of  a  federated  state  and  does  not  tend  to  a 
complete  fusion  of  the  member  states,  may  well  recognize  that  races 
and  provinces  wish  for  individual  existence  and  may  be  ready  to  accord 
them  correspondmg  liberty. 


42  THE  GERMAN  CONSTITUTION 

convinced  its  leaders  that  to  save  Germany  and  to  build  it 
up  there  was  but  one  means  possible — to  concentrate  all  the 
powers  in  the  hands  of  those  at  the  helm  of  the  Empire,  and 
as  a  consequence,  to  diminish  to  the  greatest  possible  measure 
the  powers  of  the  member  states  (if  not  actually  to  suppress 
them  completely)  in  order  to  give  all  efforts  available  a  single 
direction  and  to  utilize  them  to  the  maximum,  avoiding  at 
the  same  time  all  unproductive  energy  and  all  scattering  of 
forces. 

By  what  means  did  this  evolution  manifest  itself?  How 
far  did  the  Constituent  Assembly  go  toward  unitarization  of 
the  Reich?    Will  the  German  Reich  remain  a  federated  state? 

To  answer  these  questions  we  must  successively  examine: 

(a)  whether  the  states  still  exercise  self-determination  and 
particularly  whether  they  remain  masters  of  their  territory; 

(b)  whether  the  states  retain  the  right  to  give  themselves  their 
individual  constitutions  and  laws  and  to  govern  themselves; 

(c)  and  finally  whether  the  states  participate,  as  such,  in  the 
formation  of  the  will  of  the  Reich.  This  last  problem  will  be 
examined  in  studying  the  organization  of  the  public  powers, 
particularly  those  of  the  Reichsrat.  The  present  chapter  will 
be  devoted  to  the  study  of  the  first  two  considerations. 


SECTION  I 

TERRITORIAL  STATUS  OF  THE  STATES 

Territory  is  one  of  the  essential  elements  of  a  state.  In  a 
confederated  state  the  central  government  cannot  force  on  the 
member  states  changes  or  exchanges  of  territory,  fusions  or 
parceling  of  their  respective  holdings.  Such  was  in  principle 
the  régime  prevailing  in  the  old  German  Empire.  The  his- 
toric composition  of  the  individual  states  as  they  were  when 
their  princes  signed  the  federal  pact  in  1871  was  guaranteed, 
and  the  territories  of  individual  states  were  protected  by  the 


THE  DISMEMBERMENT  OF  PRUSSIA         43 

Constitution  in  the  geographic  integrity  they  had  when  they 
entered  the  Empire. 

The  Constitution  of  Weimar  on  the  other  hand  put  forward 
the  principle  oj  the  mobility  of  frontiers.  But  it  was  not  until 
after  the  most  violent  and  passionate  discussions  that  this  was 
adopted,  and  not  without  modifications  that  peculiarly  limited 
its  operation.  For,  what  was  foremost  in  the  deliberations 
and  constantly  dominated  them  was  neither  more  nor  less 
than  the  question  of  the  dismemberment  of  Prussia.  The 
cardinal  consideration  was  this:  legally  the  majority  of  the 
problems  of  organization  that  the  Constitution  had  to  solve 
would  depend  for  their  solution  according  to  whether  Prussia 
would  or  would  not  retain  its  territorial  integrity.  But  the 
political  problem  was  also  grave.  Prussia  remaining  as  such, 
would  it  not  exercise  again  its  former  hegemony  over  Ger- 
many with  all  the  attendant  dangers  to  the  domestic  and 
foreign  policies  of  the  Reich,  dangers  of  an  obstinate  reaction 
at  home  and  of  an  insatiable  pan-Germanism  abroad? 

1. — THE  PROBLEM  OF  THE  DISMEMBERMENT  OF  PRUSSIA. 

In  November,  1918,  there  was  felt  throughout  Germany  a 
very  powerful  centrifugal  movement.  The  masses  of  the 
people  saw  in  the  Reich  nothing  more  than  an  alliance  of 
princes  and  Prussian  domination.  It  was  to  the  princes  and  to 
Prussia  that  they  attributed  the  inexpiable  fault  of  having 
begun  the  war  and  lost  it.  During  several  weeks  of  limitless 
despair,  two  cries  were  raised,  "Down  with  the  Princes!"  and 
above  that,  "Separation  from  Prussia!"  It  must  be  added 
that  behind  these  cries  was  partly  the  unavowed  hope  that  by 
abandoning  the  Reich  one  could  more  or  less  escape  the  men- 
acing consequences  of  defeat.  The  Reich  seemed  on  the  point 
of  dissolution.^ 

But  some  men  at  once  realized  that  if  Germany  was  to  be 
saved  the  one  cflficacious  remedy  was  to  revive  in  the  people 

*See  Preuss,  Deutschlands  republikanische  Reichsvcrjassung,  p.  8. 


44  THE  GERMAN  CONSTITUTION 

the  sentiment  of  national  unity  and  to  reconstruct  the  Reich 
on  new  bases.  A  unitary  republic  would  have  to  be  created 
and  the  domination  of  Prussia  overturned. 

These  two  fundamental  objectives  were  self-explanatory 
and  mutually  compulsory.  For,  given  the  disproportion  in 
power  that  existed  between  Prussia  and  the  other  states,  the 
more  one  increased  the  power  of  the  Reich  to  the  detnment 
of  the  states  the  more  one  strengthened  the  domination  of 
Prussia,  for  thereby  Prussia  was  made  all  powerful  within 
the  Reich.  If,  therefore,  the  centralizing  character  of  the 
Constitution  was  to  be  accentuated,  the  following  dilemma 
would  have  to  be  confronted.  Either  Prussia  as  it  was  would 
have  to  be  accepted  by  the  Reich,  in  which  case  the  German 
Republic  would  in  reality  become  a  unitary  Prussian  Republic 
in  which  non-Prussian  parties  would  be  subjected  to  the  will 
of  Prussia.  Or,  if  this  state  of  affairs  was  to  be  avoided  and 
a  unitary  state  with  central  will  was  desired,  Prussia  would 
have  to  be  suppressed,  either  by  a  partition  of  her  own  accord 
or  one  imposed  upon  it  by  the  Reich.^  It  was  this  latter 
alternative  that  Under-Secretary  of  State  Preuss  chose  when 
he  was  put  in  charge  of  the  drafting  of  the  Constitution. 

The  individual  states,  he  pointed  out,  were  the  products 
of  purely  dynastic  politics  which  almost  everywhere  ran 
counter  to  the  natural  relations  of  populations  and  races,  sepa- 
rating what  should  have  been  united  and  uniting  elements 
that  had  nothing  in  common.  Only  the  republic  has  the  pos- 
sibility— it  is  also  its  duty — to  reunite  what  belonged  to- 
gether. The  fundamental  question  of  the  internal  organiza- 
tion of  Germany  is,  can  a  centralized  Prussian  State  be  main- 
tained within  the  future  German  Republic?  This  question 
Preuss,  after  philosophical,  historical  considerations,  answered 
in  the  negative.  He  demanded  the  territorial  redistribution 
of  the  states  on  the  basis  of  the  right  of  populations  to  self- 
determination,  according  to  their  needs  and  their  political  and 

*See  Jacobi,  Einheitsstaat  oder  Bundesstaat,  Leipzig,  1919. 


THE  DISMEMBERMENT  OF  PRUSSIA         45 

economic  inclinations,  with  the  intervention,  by  the  sanction 
and  under  the  direction  of  the  Reich.  Preuss  insisted  through- 
out on  the  fact  that  Prussia  is  not  a  nation,  but  that  she  con- 
stitutes an  artificial  formation,  due  to  the  political  hazards 
of  a  reigning  house,  purchases,  marriages,  conquests,  etc.  The 
Prussian  state  does  not  form  an  organic  whole  and  is  bound 
together  neither  by  economic  nor  cultural  relations.  It  is  an 
incomplete  German  state,  "an  edifice  of  fortune."  Even  ad- 
mitting that  it  had  been  for  a  time  indispensible,  in  that  it 
constituted  to  a  certain  measure  an  internal  bond,  it  has  now 
outlived  its  usefulness  as  a  state.  The  national  unity  of  Ger- 
many as  a  whole  is  a  vital  question  for  the  German  people 
and  therefore  for  the  German  Republic.  It  is  imperative  that 
the  diverse  races  who  lived  in  forced  unity  in  Prussia  should 
be  at  once  placed  under  the  sovereignty  of  the  Reich  instead 
of  being  "mediatized"  by  a  state  that  interposes  itself  between 
them  and  the  Reich.  It  is  only  by  the  suppression  of  Prussia 
that  these  populations  can  secure  that  equality  which  is  their 
right  by  the  side  of  the  other  German  states.  It  is  only  by 
the  dismemberment  of  Prussia  that  the  small  states  of  North 
and  Central  Germany  can  make  themselves  communities 
able  to  survive.  That  an  incompletely  unified  state  of  forty 
million  Germans,  that  is  to  say,  Prussia,  could  co-exist  with  a 
more  complete  unity  of  seventy  million  Germans,  is  con- 
trary to  nature  and  is  a  political  contradiction.  The  German 
people,  therefore,  must  be  free  to  erect  within  the  Reich  new 
German  republics  without  regarding  the  actual  boundaries  of 
the  existing  German  states,  as  far  as  economic  conditions  and 
historical  considerations  permit  the  formation  of  new  states. 
Newly  created  states  will  have  to  have  at  least  two  million 
inhabitants  each.  The  fusion  of  several  member  states  into 
a  new  state  can  be  effected  by  an  interstate  treaty  drawn  up 
by  the  states  in  question,  and  approved  by  their  parliaments 
as  well  as  the  government  of  the  Reich.  If  the  population  of 
a  territory  wishes  to  separate  itself  from  the  state  to  which  it 


46  THE  GERMAN  CONSTITUTION 

belonged  in  order  to  unite  with  one  or  more  other  German 
Republics,  or  to  form  for  itself  an  independent  republic  within 
the  Reich,  a  plebiscite  must  be  resorted  to. 

These  proposals  aroused  most  violent  opposition.  In  the 
meetings  of  the  committees  as  well  as  in  plenary  sessions  of 
the  Assembly  two  declarations  were  constantly  emphasized. 
On  the  one  hand,  matters  could  not  remain  as  they  were,  for 
the  interior  boundaries  of  the  country  were  too  entangled  and 
there  were  states  too  small  and  powerless  to  discharge  conveni- 
ently their  obligations.  On  the  other  hand,  it  was  impossible  to 
conceive  a  radical  transformation  and  to  hope  to  see  realized 
a  completely  new  regrouping  if  this  had  to  be  done  on 
purely  rational  principles.  Revolution  could  perhaps  effect 
this  transformation,  but  the  Republic  was  not  yet  strong 
enough  to  undertake  this  task,  particularly  as  it  was  so  pre- 
occupied with  the  problem  of  a  constitution.  Insistence  on 
the  complete  solution  of  this  problem,  even  if  it  did  not  invite 
complete  failure,  would  mean  too  much  loss  of  time.  A  com- 
promise had  to  be  found. 

The  terms  of  such  a  compromise  were  extremely  difficult  to 
find.  For  no  change  in  the  territories  of  the  various  states 
could  be  effected  without  encroaching  on  the  territory  of  Prus- 
sia, which  has  "enclaves"  or  domains  in  most  of  the  states 
whose  transformation  was  contemplated.  If  even  one  were 
to  content  oneself  with  the  fusing  of  several  small  states — 
which  it  was  unanimously  agreed  was  highly  desirable — it 
could  be  done  only  by  taking  from  Prussia  such  and  such 
piece  of  its  territory.  No  matter  from  what  side,  therefore, 
the  problem  was  attacked  one  came  to  the  question  of  the 
dismemberment  of  Prussia.  And  over  this  question  came 
conflict. 

Some  of  the  members  followed  the  lines  of  the  proposal  sub- 
mitted by  Preuss  on  the  partition  of  Prussia;  but  they  went 
much  further  and  indicated  precisely  what  territory  they 
found  necessary  to  take  away  from  it. 


THE  DISMEMBERMENT  OF  PRUSSIA         47 

It  was  above  all  the  question  of  the  Rhineland.  Through 
Trimborn,  spokesman  of  the  Centre,  deputies  of  Cologne  and 
Aix-la-Chapelle,  the  inhabitants  of  the  Rhine  country  pre- 
sented their  claims.  Prussia,  product  of  a  political  dynasty, 
is  an  aggregation  of  different  races,  for  there  is  no  Prussian 
nation.  The  people  who  live  on  the  banks  of  the  Rhine  feel 
themselves  handicapped  in  comparison  with  the  other  German 
races,  since  they  are  not  in  direct  contact  with  the  Reich, 
and  are  represented  in  it  only  through  the  medium  of  Prussia. 
It  follows  from  this  that  the  people  of  the  Rhine  cannot  have 
free  expression  of  their  native  tendencies  nor  develop  their 
own  culture.  They  suffer  in  every  way  by  not  having  their 
own  administration  and  by  having  to  endure  Prussian  func- 
tionaries over  them. 

The  objections  which  came  from  the  Prussian  side  to  the 
formation  of  a  Rhine  state  were  not  valid,  insisted  the  parti- 
sans of  the  latter.  The  separation  of  the  Rhineland  from 
Prussia  need  not  entail  in  itself  a  separation  from  the  Reich, 
On  the  contrary,  the  Rhineland  would  be  more  solidly  and  inti- 
mately welded  to  the  Reich  if  they  belonged  to  it  directly 
instead  of  being  only  part  of  Prussia.  Nor  would  they  admit 
the  argument  that  the  Rhineland  should  belong  to  Prussia 
to  supplement  economically  the  relatively  poor  Eastern  prov- 
inces of  Prussia.  "The  old  cry  of  the  poor  East  and  the  rich 
West  is  to-day  dead,"  the  Rhinelanders  insisted.  War  and 
revolution  have  done  infinitely  more  damage  to  industrial 
Rhine  than  to  the  rural  Eastern  provinces.  Finally,  while  it 
is  possible  that  for  a  certain  period,  undoubtedly  short,  there 
might  be  disturbances  in  Germany  caused  by  the  creation  of 
a  new  state,  these  would  be  less  harmful  than  leaving  on  the 
Rhine  a  situation  that  would  remain  a  permanent  source  of 
trouble.  In  conclusion,  the  representatives  of  the  Rhineland 
demanded  the  creation  of  a  Republic  of  the  West,  which 
should  take  in  the  provinces  of  the  Rhine,  a  part  of  West- 
phalia and  the  territories  of  Oldenburg  and  Bremen. 


48  THE  GERMAN  CONSTITUTION 

On  the  other  hand,  the  representatives  of  Hanover  demanded 
justice  against  the  violent  annexation  to  which  it  had  been 
subjected  in  1866.  There  was  formed  in  the  Assembly  a 
"German-Hanoverian"  group  which  demanded  "a  free  Hanover 
within  a  new  Germany."  It  involved  the  fusion  of  Lower 
Saxony  with  Hanover  and  Brunswick. 

In  the  same  way  the  small  states  of  Central  Germany 
wanted  to  fuse  into  a  single  state  which  would  take  in  also 
part  of  the  territory  of  Prussia  and  the  region  of  Erfurt,  and 
would  form  the  state  of  Thuringia. 

To  these  claims  the  representatives  of  Prussia,  particularly 
the  Prussian  Minister  of  Justice,  Heinze,  and  the  German 
Nationalist,  Diiringer,  replied,  that  the  separatists  were  rats 
who  were  deserting  a  sinking  ship;  and  they  presented  a  vig- 
orous defence  of  Prussia. 

Firstly,  they  insisted,  Prussia  is  no  longer  what  it  was 
before  the  Revolution.  Formerly  it  was  a  powerful  state  en- 
joying all  the  advantages  of  hegemony  and  all  the  privileges 
which  came  from  the  fact  that  the  German  Emperor  was  the 
King  of  Prussia.  To-day,  said  they,  Prussia,  whose  military 
backbone  is  broken,  finds  itself  economically  and  financially 
ruined  and  all  its  ancient  perogatives  taken  away.  Further- 
more, its  former  electoral  system  based  on  a  class  suffrage 
is  gone  and  all  the  elements,  including  those  of  the  Rhine, 
can  make  themselves  equally  felt  thereafter. 

Prussia  as  it  now  exists  should  be  maintained,  they  went  on. 
Its  dismemberment  would  hurt  the  Reich  more  than  it  would 
serve  it.  Only  powerful  states,  in  command  of  important 
financial  resources,  can  discharge  the  innumerable  duties  that 
to-day  are  incumbent  on  public  organisms.  Not  only  is 
Prussian  culture  necessary  for  the  development  of  German 
culture,  but  the  downfall  of  Prussia  would  involve  the  down- 
fall of  Germany;  for  Prussia  is  the  cement  that  holds  to- 
gether the  unity  of  the  Reich,  and  renders  services  propor- 
tional to  its  greatness.    Then,  too,  what  would  be  the  result 


THE  DISMEMBERMENT  OF  PRUSSIA         49 

of  a  dismemberment  of  Prussia?  Aside  from  the  fact  that  the 
advocates  of  dismemberment  are  absolutely  unable  to  indi- 
cate the  number  and  extent  of  the  states  into  which  they 
would  carve  Prussia,  its  parcelling  out  would  involve  a  con- 
siderable loss  in  power  and  spirit,  in  time  and  in  money.  For 
each  new  state  will  want  to  have  new  administrative  apparatus 
complete  in  every  respect,  a  separate  constitution,  a  separate 
parliament,  a  separate  legislature,  and  so  on.  These  states 
by  reason  of  their  weakness  will  be  unable  to  discharge  the 
obligations  that  would  fall  upon  them.  Still  further,  nothing 
was  more  illogical  than  to  create  new  states  if  one  wants  to 
realize  some  day  or  other  the  unity  of  the  Reich;  for,  each 
of  these  states  will  constitute  later  on  just  one  more  obstacle 
to  such  a  unity. 

Finally,  said  the  Prussians,  Prussia,  which  has  already  given 
all  and  sacrificed  all  to  the  greatness  of  the  Empire,  is  ready 
to  renounce  still  more,  for  the  benefit  of  the  Reich,  what  still 
remains  of  its  independence,  provided,  that  the  other  states 
do  as  much. 

But  it  was  precisely  this  demand  that  made  the  proposition 
impossible  of  acceptance  by  the  others.  In  "sacrificing  to 
the  Reich  all  that  remained"  of  the  ancient  rights  of  Prussia, 
the  latter  in  reality  sacrificed  nothing;  on  the  contrary,  it 
gained  a  great  deal.  For,  mistress  of  the  Reich  as  it  would 
be,  it  would  secure  thereby  not  only  everything  it  brought  to  it, 
but  also  all  that  the  other  states  contributed  to  it.  It  was 
thus,  therefore,  that  Preuss  always  came  back  to  the  same 
dilemma:  either  a  Germany  under  Prussian  hegemony  or  a 
Prussia  dissolved  into  the  Reich. 

Following  the  position  which  they  took  on  this  question, 
the  members  of  the  Committee  on  the  Constitution  supported 
either  the  text  adopted  by  the  conference  of  States  or  the 
project  put  forward  by  the  government. 

It  became  indispensable  to  know  who  in  the  last  instance 
would  decide  on  the  territorial  distribution.    The  conference 


50  THE  GERMAN  CONSTITUTION 

of  states  replied,  that  only  the  states  concerned  should  have 
the  decision,  otherwise  there  remains  no  such  thing  as  states. 
The  government  insisted  that  it  alone  should  be  the  deciding 
power,  for  it  was  the  natural  arbiter  between  the  states,  and 
only  it  controlled  the  situation  sufficiently  to  resolve  the  prob- 
lem in  accordance  with  the  political  and  economic  considera- 
tions that  were  involved.  Only  the  Reich  can  accomplish 
the  necessary  redistribution  according  to  a  consistent  plan. 
Such  a  redistribution  would  have  to  be  regulated  by  a  law. 
A  third  current  of  opinion  in  this  question  came  particularly 
from  the  champions  of  the  creation  of  a  Rhine  republic,  who 
pressed  for  the  submission  of  the  question  of  territorial  redis- 
tribution to  popular  referendum  and  insisted  that  the  will  of 
the  population  thus  expressed  should  be  the  ultimate  guide  for 
territorial  redistribution. 

After  a  preliminary  examination  of  the  question  the  com- 
mittee to  which  it  had  been  submitted  presented  a  project 
according  to  which  territorial  changes  would  be  regulated  by  a 
law,  which,  however,  would  have  to  be  demanded  either  by 
the  people  involved  or  by  a  predominant  general  interest.  It 
would  be  the  Reich  that  would  decide  this  in  the  last  in- 
stance. Against  this  first  project  of  the  committee,  objections 
were  raised  on  March  29  by  the  states  of  south  Germany; 
and  negotiations  began  between  the  government,  the  repre- 
sentatives of  these  states  and  those  of  the  majority  parties. 
On  May  29,  a  compromise  was  signed  which,  after  slight 
alterations  on  June  5  by  the  Committee  on  the  Constitution, 
provided  that  territorial  changes  must  be  accepted  in  prin- 
ciple by  the  states  involved,  and  approved  by  the  Reich.  If 
the  states  refused  their  consent  these  changes  could  not  be 
effected  except  by  a  law  that  took  the  form  of  a  Constitu- 
tional provision;  but  this  law  could  not  be  enacted  unless  the 
populations  affected  demanded  it  or  unless  the  preponderant 
general  interest  required  it.  This  new  version  increased  the 
rôle  of  the  states  but  also  augmented  the  difficulty  of  pro- 


THE  DISMEMBERMENT  OF  PRUSSIA  51 

cedure  in  any  dismemberment  whatsoever.  It  did  not,  how- 
ever, exclude  the  hypothesis  of  a  dismemberment  effected  in 
opposition  to  the  wishes  of  the  interested  states. 

The  debate  came  back  again  and  again  to  this  version;  and 
when  the  question  reached  the  second  reading  before  the  Na- 
tional Assembly  there  was  presented  an  amendment  drawn 
up  by  Lobe  of  the  Social  Democrats,  Trimborn  of  the  Centre, 
and  Heile  of  the  Democrats,  which  after  very  much  discussion 
among  the  government  and  the  representatives  of  the  states 
modified  considerably  the  version  of  the  Committee  on  the 
Constitution.  On  the  one  hand,  territorial  modifications  were 
facilitated  in  the  sense  that  new  states  could  thereafter  be 
created,  even  against  the  desires  of  the  interested  states,  by  a 
simple  law;  for  they  wanted  to  avoid,  for  example,  the  situa- 
tion in  which  Prussia  or  another  state  could  completely  pre- 
vent all  territorial  modification  by  rendering  impossible  the 
necessary  majority  for  the  vote  needed  to  enact  a  constitu- 
tional law.  On  the  other  hand,  the  creation  of  such  a  new 
state  was  rendered  more  difficult  in  the  sense  that  it  consid- 
erably complicated  the  conditions  according  to  which  the 
populations  affected  could  express  their  desires.  But  most 
important  of  all — and  that  was  the  principal  provision  of  the 
amendment — it  was  specified  that  no  territorial  change  could 
be  effected  against  the  wish  of  the  states  concerned  before  a 
period  of  two  years  after  the  formal  adoption  of  the  Con- 
stitution. 

Thus  Prussia  was  guaranteed  for  at  least  two  years  against 
dismemberment. 

This  last  provision  was  aimed  at  the  Rhineland  whose  situa- 
tion, as  it  was  clearly  indicated  at  the  Assembly,  was  at  the 
bottom  of  all  the  discussion.  It  was  declared  that  the  Rhine- 
land  needed  above  all  tranquillity  in  the  particular  circum- 
stances in  which  it  found  itself;  that  occupied  by  foreign 
troops  it  could  decide  its  territorial  needs  only  with  difficulty; 
and  that,  above  all,  the  creation  of  a  state  on  the  banks  of 


52  THE  GERMAN  CONSTITUTION 

the  Rhine  would  be  considered  abroad  as  a  preliminary  to  the 
complete  independence  of  this  state  from  the  German  Reich; 
and  that  it  was  "necessary  to  maintain  a  unity  of  front 
against  French  imperialism."  Along  this  line  of  argument 
it  was  further  insisted  that  the  dismemberment  of  Prussia  has 
been  the  chief  aim  of  the  war  waged  by  the  enemies  of  Ger- 
many and  the  creation  of  a  Rhenish  Republic  would  be  ex- 
ploited by  them  as  an  additional  victory.  This  resulted  in  the 
deputies  from  the  Rhenish  provinces  declaring  in  the  tribune 
of  the  Assembly  their  loyalty  to  the  Reich  and  that  whatever 
were  their  desires  to  see  the  Rhineland  organized  into  a  state, 
they  would  support  the  Lobe-Trimbom-Heile  amendment  in- 
cluding the  postponement  for  two  years  of  their  justifiable 
claims. 

The  amendment  was  adopted  by  vote  of  169  to  71,  with  10 
abstentions. 

This  version  could  not  yet  be  considered  as  definitive, 
since  when  it  came  up  for  the  third  reading  before  the 
Assembly  a  new  version  was  presented  in  the  form  of  a  new 
amendment  by  Lobe,  Trimborn  and  Heile,  which  modified  the 
original  version.  The  changes  proposed  dealt  with  the  method 
of  calculating  the  majorities  necessary  in  a  popular  vote  to 
determine  territorial  changes.  The  Prussian  Minister  of  the 
Interior  Heine  complained  that  the  compromise  previously 
adopted  after  such  long  debate  had  been  modified  at  the  last 
moment  in  the  course  of  conferences  to  which  the  representa- 
tives of  the  states  concerned  had  not  been  summoned.  He 
preferred  the  original  version;  nevertheless  he  accepted  the 
new  one  since  he  was  convinced  that  the  Constitution  would 
have  to  be  revised  in  several  of  its  parts.  He  added  several 
interesting  declarations.  It  would  be  dangerous,  he  said,  to 
seek  to  realize  unity  within  the  Reich  by  creating  new  states, 
which  would  almost  immediately  after  have  to  abandon  their 
newly  won  sovereignty  and  dissolve  themselves  into  the  Reich 
as  a  whole.    That  would  be  a  useless  detour.    Heine  pledged 


CHANGES  IN  STATE  TERRITORIES         53 

himself  to  facilitate  the  creation  of  the  state  of  Thuringia  and 
to  give  up  to  it  a  part  of  Prussian  territory  on  the  condition 
that  prior  to  this  a  treaty  would  be  enacted  between  that  state 
and  Prussia  regulating  the  administrative  and  economic  rela- 
tions between  the  two.  But  he  opposed  with  vigor  the  propo- 
sition to  create  the  state  of  Upper  Silesia  and  above  all  opposed 
the  creation  of  a  Rhenish  Republic,  This  Republic,  he  pointed 
out,  would  unite  the  territories  of  the  left  bank  of  the  Rhine 
occupied  by  the  enemy  and  the  territories  of  the  right  bank 
administered  by  Prussia.  Such  a  union  far  from  safeguarding 
the  German  spirit  on  the  left  bank  would  incur  the  risk  of 
submitting  the  right  bank  to  the  same  influences  that  pre- 
vailed on  the  other,  and  thus  create  a  considerable  danger  of 
infection  to  the  right  bank. 

Finally  the  Lobe-Trimborn-Heile  amendment  in  its  new 
version  was  adopted  by  the  Assembly. 

At  the  same  time  the  Assembly  passed  a  resolution  which 
invited  the  Government  to  institute  a  central  office  where  the 
different  states  would  be  represented;  one  which  would  have  as 
its  function  to  prepare  programmes  for  regrouping  the  terri- 
tory in  accordance  with  a  general  plan.  In  July,  1920,  a 
commission  was  formed  in  the  Reichsrat  with  the  consent  of 
the  states  to  devote  itself  to  this  task.  The  Minister  of  the 
Interior  for  the  Reich,  Koch,  summed  up  its  programme  as 
"federation  and  decentralization." 

2. — CHANGES   IN   STATE  TERRITORIES. 

The  territorial  status  of  states  is  regulated  by  Article  18  of 
the  Constitution. 

This,  as  we  have  said,  is  a  compromise;  its  leading  idea  is  to 
fortify  and  draw  closer  the  bonds  of  unity  within  the  Reich 
on  the  basis  of  a  new  redistribution  of  territory  according  to 
economic  and  social  interests  and  taking  into  account  the 
wishes  of  the  population.  It  is  true  that  this  has  the  value 
only  of  a  programme  without  positive  legislative  force;  never- 


54  THE  GERMAN  CONSTITUTION 

theless  it  has  its  importance  ;  it  presents  the  principle  of  a  pro- 
gressive revision  of  the  territories  of  the  states,  a  revision 
whose  new  unities  would  form  organic  divisions  of  the  Reich 
such  as  would  serve  to  a  maximum  degree  the  interest  of  the 
whole  German  people.  The  idea  which  should  direct  this  ter- 
ritorial regrouping  must  be  exclusively  the  interest  of  the 
German  nation  in  its  ensemble.  The  territorial  status  of  the 
states  no  longer  has  as  formerly  a  value  absolute  in  itself, 
but  is  thereafter  subjected  to  the  condition  that  it  assures  in 
the  largest  measure  possible  the  highest  well-being  of  the 
Reich  as  a  whole.  There  is  in  this  undoubtedly  a  victory  for 
the  unitary  idea. 

Frontiers,  therefore,  will  be  "mobile"  and  their  modifica- 
tion will  have  to  serve  the  development  of  the  general  wel- 
fare. It  will  have  to  be  the  Reich  that  will  be  called  upon 
to  preside  over  the  question  of  new  repartition  of  territories, 
because  it  alone  is  the  holder  of  sovereignty  in  Germany, 
and  because  it  alone  is  in  position  to  maintain  an  equal  bal- 
ance between  the  varied  and  particular  interests  of  the  states. 
No  territorial  change  whatsoever,  whether  a  fusion,  a  separa- 
tion, or  the  creation  of  a  state,  will  be  possible  or  operative 
no  matter  what  conditions  exist  for  its  consummation,  with- 
out a  law  enacted  by  the  Reich. 

In  addition — and  this  general  rule  must  be  followed  every 
time  that  a  change  is  envisaged  which  does  not  constitute  an 
exception  expressly  provided  for — such  a  law  of  the  Reich 
must  be  enacted  in  the  form  of  a  constitutional  law. 

This  rule  has  three  exceptions  in  which  an  ordinary  law  of 
the  Reich  suffices,  provided  that  a  certain  number  of  other 
conditions  are  realized. 

(1)  An  ordinary  law  is  sufficient  when  the  change,  the 
separation  or  the  union  of  territories  takes  place  with  the  con- 
sent  of  the  interested  states.  This  consent  manifests  itself 
in  the  form  of  a  declaration  of  the  governments  of  the  states; 
for  these  governments  by  virtue  of  the  constitution  enjoy 


CHANGES  IN  STATE  TERRITORIES         55 

the  confidence  of  the  people,  since  they  are  supposed  to  be  both 
democratic  and  republican  ;  in  which  case  a  plebiscite  is  super- 
fluous. 

(2)  But  cases  may  present  themselves  in  which  populations 
wish  to  separate  from  a  state  to  which  they  belong,  against 
the  desires  of  the  government  of  the  state.  The  Constitution 
provides  that  the  wish  of  these  populations  must  be  followed. 
According  to  Article  18  an  ordinary  law  is  sufficient  to  permit 
territorial  changes  or  the  creation  of  states  if  the  interested 
states  do  not  consent  to  it,  but  if  the  wish  of  the  population 
demands  it  and  at  the  same  time  the  preponderant  interest 
of  the  Reich  requires  it.  This  provision  is  evidently  directed 
against  Prussia  ;  for  should  in  such  a  case  a  constitutional  law 
be  demanded  Prussia  would  command  a  sufiScient  number  of 
votes  in  the  Assemblies  to  prevent  changes  it  did  not  wish. 
The  dismemberment  of  Prussia  is  thus  rendered  theoretically 
possible  by  this  provision.  But  we  know  that  this  provision 
is  not  applicable  before  August  12,  1921. 

It  remains  to  be  seen  how  the  wish  of  a  population  can 
manifest  itself  in  the  operation  of  the  latter  provision. 

The  population  may  either  be  consulted  by  the  government 
of  the  Reich,  which  can  order  an  immediate  plebiscite  ;  or  the 
population  can  take  the  initiative  and  impose  on  the  govern- 
ment of  the  Reich  the  obligation  of  ordering  the  plebiscite. 
This  initiative  must  be  signed  by  a  third  of  the  inhabitants 
of  the  territory  whose  separation  is  asked  for.  The  plebiscite 
in  such  a  case  must  be  ordered  by  the  government  of  the 
Reich. 

Whether  the  plebiscite  is  ordered  by  the  government  or  re- 
sults from  popular  initiative,  it  must,  to  be  effective,  satisfy 
the  following  conditions  of  majority.  They  must  obtain  (a) 
three-fifths  of  the  total  number  of  votes  cast;  (b)  a  majority 
of  the  votes  of  the  inhabitants  entitled  to  suffrage;  (c)  and 
finally  when  the  question  is  one  of  dividing  a  territory  which 
wishes  to  separate  from  its  state,  the  population  of  the  whole 


56  THE  GERMAN  CONSTITUTION 

district  or  administrative  division  of  which  it  was  a  part  must 
be  consulted;  this  in  order  to  avoid  break-ups  due  to  paro- 
chial quarrels.  In  other  words,  the  plebiscite  must  extend  to 
the  whole  district  even  if  the  part  that  wishes  to  separate 
forms  only  a  fraction  of  this  district.  Nevertheless  Article  18 
provides  for  practical  purposes  one  exception  to  this  third 
condition.  This  refers  to  exceptional  districts,  that  is  to  say, 
sections  of  territory  that  have  no  geographical  kinship  with 
the  district  to  which  they  belong.  In  such  a  case  a  special 
law  of  the  Reich  could  decide  that  the  wish  of  the  population 
of  this  special  district  is  sufficient  and  that  the  entire  popula- 
tion of  the  district  to  which  it  belongs  need  not  be  consulted. 

The  plebiscite  having  rendered  an  afiEirmative  verdict  the 
government  of  the  Reich  must  submit  to  the  Reichstag  the 
project  of  law  necessary  to  effect  the  changes  in  territory 
desired  by  the  population. 

(3)  An  ordinary  law  is  suflScient  to  modify  the  outer  boun- 
daries of  the  state,  that  is  to  say,  the  frontiers  of  the  Reich 
itself,  when  these  are  necessitated  by  a  treaty  of  peace.  When 
these  modifications  are  to  be  effected  otherwise  than  by  the 
special  case  of  a  treaty  of  peace,  the  consent  of  the  state 
affected  must  be  obtained  (Article  78). 

Such  are  the  provisions  of  the  Constitution  relative  to  the 
territorial  status  of  the  states,  but  it  must  be  recalled  that 
certain  of  these  provisions — those  which  aim  at  territorial 
change  based  on  the  desires  of  the  population  but  against  the 
wishes  of  their  state  government — do  not  become  operative 
until  two  years  after  the  adoption  of  the  constitution.  Thus 
up  to  August  12,  1921,  no  parcel  of  the  territory  of  Prussia, 
Bavaria,  Hesse,  Oldenburg,  occupied  by  foreign  armies,  could 
be  constitutionally  taken  away  from  their  states  without  their 
wish.  The  aim  pursued  by  the  constituent  Assembly  in 
adopting  this  provision  was  to  combat  separatist  attempts  of 
powers  whose  armies  occupy  German  soil,  and  to  avoid  all 
appearances  and  possibilities  of  dismemberment  until  révolu- 


THE  CREATION  OF  A  STATE— THURINGIA      57 

tionary  effervescence  and  political  disorders  shall  have  come 
to  an  end. 

3. — THE  CREATION  OF  A  STATE — THURINGIA. 

The  provisions  which  we  have  elucidated  have  already 
been  put  into  operation.  A  new  state  has  appeared  in  the 
Reich  created  by  the  fusion  of  several  former  states. 

Almost  immediately  after  the  revolution  of  November, 
1918,  a  project  was  born  in  central  Germany  to  fuse  several 
states  there  and  to  form  of  their  territories  the  state  of 
"Thuringia." 

First  the  two  states  of  Reuss  reunited.  On  December  21, 
1918,  they  organized  an  administration  in  common  and  the 
fusion  became  operative  on  April  4,  1919.  This  new  state 
appeared  thereafter  as  a  sort  of  centre  for  crj'stallization. 
The  first  state  to  join  this  movement  was  the  Republic  of 
Altenburg,  with  which  Reuss  had  many  interests  in  common. 

But  this  development  toward  the  federation  of  states  of 
central  Germany  was  soon  interrupted  and  seemed  for  a  time 
even  definitely  arrested.  The  men  who  were  pushing  the 
project  of  extending  this  movement  conceived  the  idea  of  the 
creation  of  a  "Great  Thuringia,"  which  would  comprise  im- 
portant parts  of  Prussian  territory  and  which  would  have  as 
the  economic  and  political  centre  and  as  capital  the  Prussian 
city  of  Erfurt. 

The  execution  of  this  plan  aroused  violent  opposition  on  the 
part  of  the  government  of  Prussia,  such  as  it  manifested  when- 
ever the  question  came  up  of  the  separation  from  it  of  any 
part  of  its  territory.  It  encountered  also  the  strong  objection 
on  the  part  of  the  authorities  and  the  population  of  Erfurt 
who  preferred  the  present  advantage  of  belonging  to  the  most 
powerful  German  state  rather  than  the  possible  benefit  of 
becoming  an  important  element  in  a  new  state.  The  project 
of  a  "Great  Thuringia"  was  abandoned  and  the  effort  con- 
tinued as  before  to  form  a  state  which  should  comprise  all 


58  THE  GERMAN  CONSTITUTION 

the  states  of  Thuringia  without  appropriating  any  Prussian 
territory. 

Of  the  eight  republics  of  central  Germany  included  in  this 
plan  of  fusion  one,  that  of  Coburg,^  refused  to  join  the  move- 
ment. This  republic,  having  on  October  30  inaugurated  a 
plebiscite  to  find  out  whether  the  population  wished  to  belong 
to  Bavaria  or  to  the  future  "Thuringia,"  obtained  3,460  votes 
for  Thuringia  and  16,102  votes  for  Bavaria.  This  reunion 
with  Bavaria  was  then  consummated,  with  the  consent  of 
Bavaria,  by  a  law  of  the  Reich  of  April  30,  1920. 

As  for  seven  other  republics — Saxe-Weimar-Eisenach, 
Saxe-Altenburg,  Reuss,  Saxe-Gotha,  Schwarzburg-Rudolstadt, 
Schwarzburg-Sondershausen  and  Saxe-Meiningen — they  con- 
cluded a  "treaty"  by  which  they  combined  in  a  "community" 
to  prepare  their  complete  fusion. 

To  this  effect  the  treaty  provided  two  organs: 

(a)  A  popular  Council,  the  legislative  organ  of  the  "Com- 
munity," composed  of  representatives  of  each  of  the  seven 
Diets  ; 

(b)  A  Council  of  States,  the  executive  organ,  consisting  of 
representatives  of  each  of  the  seven  governments. 

These  organs  had  as  their  mission  to  study  and  take  all 
preliminary  measures  necessary  for  the  fusion.  To  permit 
the  accomplishment  of  this  mission  the  states  transferred  to 
them  all  their  legislative  and  administrative  powers  necessary. 
The  laws  voted  by  the  popular  Council  were  therefore  com- 
pulsory in  the  territory  of  all  the  seven  states.  They  were 
particularly  operative  over  the  governments  and  the  admin- 
istrative authorities  of  these  states.^ 

*  Since  the  Revolution,  Coburg  has  detached  itself  from  Saxe-Coburg- 
Gotha  and  become  a  distinct  state  without  the  decision  of  any  authority 
whatsoever  sanctioning  this  situation. 

^  There  was  in  this  a  true  provisionally  federated  state  within  a  fed- 
eral German  state.  For  several  months  there  was  thus,  in  central 
Germany,  a  triple  superposition  of  states. 


THE  DIVISION  OF  POWER  59 

The  common  organs  were  in  addition  instructed  to  prepare 
the  Constitution  of  their  future  state. 

When  all  these  necessary  preliminary  provisions  had  been 
taken  the  Reich  declared  the  fusion  in  being.  All  the  inter- 
ested states  being  in  agreement  with  this  step  an  ordinary  law 
sufficed;  and  it  carries  the  date  of  April  30,  1920. 

SECTION  II 

THE  DIVISION  OF  POWER  BETWEEN  THE  REICH  AND 
THE  STATES 

The  unitary  character  of  the  Constitution  appeared  not 
only  in  the  fact  that  it  recognized  in  principle  the  right  of 
the  Reich  to  regulate  the  territorial  status  of  the  states.  It 
appeared  also  in  the  clauses  relating  to  the  division  of  author- 
ity between  the  Reich  and  the  States,  provisions  that  took 
from  the  latter  and  gave  to  the  Reich  a  considerable  quantity 
of  powers  of  a  constitutional  character  as  well  as  legislative 
and  administrative. 

1. — THE  CONSTITUTION  OF  THE  STATES. 

The  Constitution  of  the  German  Empire  of  1871  recognized 
the  right  of  the  member  states  to  choose  whatever  constitu- 
tions they  desired.^  The  Empire  never  concerned  itself  with 
the  form  of  government  chosen  by  any  of  its  states  nor  with 
the  different  provisions  they  inserted  in  their  constitutions. 

Germany  was  thereby  the  only  federated  state  which  thus 
left,  theoretically  at  least,  such  a  latitude  to  its  member 
states.  The  United  States  and  Switzerland,  for  instance,  im- 
pose certain  fundamental  provisions  on  the  constitutions  of 
their  component  states,  relating  to  the  form  of  their  State. 

This  latitude  could  not  exist  in  the  new  Germany  for  the 

*  It  must  be  recognized  nevertheless  that  with  the  exception  of  the 
Hanseatic  cities  the  monarchical  form  was  implied.  For  Prussia  it  was 
obligatory. 


60  THE  GERMAN  CONSTITUTION 

Reich,  having  adopted  a  democratic  and  republican  constitu- 
tion, could  not,  without  condemning  the  very  principles  on 
which  it  had  been  built,  agree  that  such  and  such  of  the 
member  states  should  remain  monarchical.  Proscribed  in  the 
Reich,  monarchy  would  also  have  to  be  barred  in  the  states. 
Also  the  co-existence  of  both  monarchies  and  republics  within 
the  Reich  would  have  something  so  inconsistent  within  itself 
that  it  would  run  particularly  counter  to  the  centralizing 
tendency  which  was  being  so  eagerly  promoted. 

Article  17  therefore  indicates  to  the  states  the  bases  on 
which  they  must  erect  their  future  constitutions,  in  order  to 
insure  a  harmony  of  principles  between  the  Constitution  of 
the  Reich  and  the  constitutions  of  the  states.  These  bases 
would  have  to  be  analogous  to  those  serving  as  the  founda- 
tion of  the  Constitution  of  the  Reich.  One  can  group  these 
principles  under  three  heads: 

1.  The  democratic  principle. — All  power  springs  from  the 
people;  as  a  consequence  national  representatives  must  be 
elected  by  popular  vote;  that  is  to  say,  they  must  be  elected 
by  all  the  Germans,  men  and  women,  by  universal,  equal, 
direct  and  secret  suffrage  following  the  rules  of  proportional 
representation.  The  same  applies  for  municipal  councils.  On 
the  other  hand  the  states  remain  free  to  provide  different 
modes  of  suffrage  in  elections  in  wards,  districts  and  provinces. 

2.  The  republican  form  of  the  government. — All  mon- 
archical restoration  is  forbidden. 

3.  Parliamentary  government. — But  this  provision  was 
only  desired  by  the  Constituent  Assembly;  it  is  not  strictly 
imperative.  Preuss  formally  declared  in  committee  meeting 
that  any  constitution,  for  example  such  as  that  existing  in 
Switzerland,  which  provided  for  a  council  elected  by  popular 
vote,  would  be  admissible;  but  there  would  be  excluded  a 
régime  of  despotism  in  which  the  government  was  completely 


THE  LEGISLATIVE  POWER  OF  THE  REICH    61 

independent  of  the  popular  Assembly.  It  mattered  little  other- 
wise whether  the  state  adopted  the  one-chamber  system  or 
that  of  two  chambers. 

These  three  principles  were  accepted  without  serious  difiB- 
culty.  A  twofold  point  must,  however,  be  noted.  First  that 
all  Germans  could  vote  in  all  the  states  for  the  election  of  the 
popular  Chamber,  that  is  to  say,  for  example,  a  Bavarian  could 
vote  at  the  election  of  the  Prussian  Diet.  This  provision  is 
one  of  the  principles  that  suppressed  almost  entirely  the  na- 
tionalistic motive  of  the  individual  states;  it  is  clearly  char- 
acteristic of  the  unitary  tendency  of  the  constitution.  In 
addition  to  this.  Article  17  adds  to  the  general  conditions  a 
special  condition  in  the  case  of  local  elections:  a  year's  resi- 
dence in  the  district  is  necessary  for  the  right  to  vote. 

In  the  National  Assembly  the  speakers  for  the  parties  of 
the  Right  insisted  at  great  length  on  the  difference  that  exists 
between  political  elections  and  purely  local  elections.  In 
the  latter  it  was  necessary  above  all  that  the  elector  choose 
men  known  to  be  familiar  with  local  needs  and  competent  to 
satisfy  them.  These  propositions  are  undisputable,  but  the 
conclusion  which  the  German  Nationalists  drew  from  them 
was  that  to  be  an  elector  in  a  district  one  must  be  a  holder  of 
property  in  it.  These  conclusions  were  rejected  by  the  Assem- 
bly as  contrary  to  the  democratic  principle,  and  a  year's  resi- 
dence was  the  only  condition  finally  adopted. 

2. — THE   LEGISLATIVE   POWER   OF   THE,  REICH. 

The  states  are  limited  not  only  in  their  right  to  adopt 
whatever  constitution  they  desire;  they  are  also  limited  con- 
siderably in  legislative  power  by  that  of  the  Reich. 

I. — FUNDAMENTAL  LIMITS  OF  POWER. 

Already  the  Constitution  of  1871  had  reserved  to  the  Reich 
a  certain  number  of  mutters  on  which  only  it  had  the  right 
to  legislate.    It  was  thus  that  foreign  affairs,  citizenship,  eus- 


62  THE  GERMAN  CONSTITUTION 

toms,  indirect  taxes,  railroads,  post  and  telegraph,  legislation, 
civil,  penal  and  conamercial,  the  army,  the  navy,  the  police 
and  regulation  of  the  press,  all  were  included  in  the  legisla- 
tive authority  of  the  Reich.  In  the  memorandum  submitted 
by  Preuss  in  his  draft  of  the  Constitution,  he  insisted  on  the 
necessity  of  revising  this  division  of  authority.  He  submitted 
as  a  principle  that  all  state  functions  belonging  naturally  to 
the  national  collectivity  as  such  should  be  concentrated  in 
the  hands  of  the  Reich  more  strongly,  more  exclusively  and 
more  clearly  than  in  the  preceding  constitution.  On  the  other 
hand,  the  autonomy  and  free  administration  of  the  smaller 
collectivities,  from  the  communes  up,  would  find  their  con- 
summation and  their  most  complete  development  in  the  re- 
publics, which  should  be  constituted  in  united  groups  accord- 
ing to  the  nature  of  their  populations  and  their  economic 
structure. 

In  the  course  of  this  work  two  tendencies  clashed:  the 
necessity  for  the  development  and  strengthening  of  the  unity 
of  the  Reich;  and  the  necessity,  on  the  other  hand,  of  assuring 
the  states  a  sufiiciently  individual  existence.  A  compromise 
was  effected;  but  more  than  ever  before  perhaps  the  cen- 
tralizing tendency  was  accentuated;  and  it  has  gone  as  far  as 
possible  without  completely  suppressing  the  reason  for  the 
existence  of  the  states. 

The  authority  of  the  Reich  is  more  or  less  extended  accord- 
ing to  circumstances.  It  can  be,  to  use  the  technical  ex- 
pressions employed  in  Germany,  exclusive,  concurrent,  and 
normative. 

1.  The  competence  of  the  Reich  is  exclusive,  when  it  alone 
has  the  right  to  legislate,  in  the  respect  that  the  states  cannot 
pass  laws  on  the  matters  touching  this  authority  of  the  Reich, 
even  if  the  Reich  abstains  from  using  that  right.  These  mat- 
ters are  enumerated  in  Article  6,  which  contains,  as  compared 
with  the  former  constitution,  important  innovations. 

The  relations  with  foreign  nations  are  hereafter  the  exclu- 


THE  LEGISLATIVE  POWER  OF  THE  REICH    63 

sive  province  of  the  Reich.  The  states  lose  the  active  and 
passive  rights  of  legation,  and  they  cannot  enter  into  relations 
with  foreign  states  except  through  the  intermediacy  of  the 
Reich.  However,  Article  78  gives  them  the  right  to  conclude 
treaties  with  foreign  powers  on  matters  which  belong  to  their 
own  proper  legislative  domains,  policing  of  the  frontier  prob- 
lems, for  example.  But  these  treaties  must  secure  in  addition 
the  consent  of  the  Reich. 

Another  novelty  is  the  unification  of  the  army.  In  place 
of  the  former  contigents  there  is  hereafter  an  army  of  the 
Reich  in  the  hands  of  which  is  concentrated  all  the  means  of 
defence  of  Germany.  The  army  is  hereafter  from  this  point 
of  view  placed  on  the  same  basis  as  the  navy. 

In  the  same  way  there  is  an  increase  in  the  authority  of 
the  Reich  over  the  interior  situation,  the  provisions  according 
to  which  the  Reich  only  has  the  power  to  legislate  on  posts, 
telegraphs,  and  telephones.  It  is  true  that  the  former  con- 
stitution had  put  forward  the  principle  that  the  posts  and  tele- 
graphs of  the  German  Empire  should  be  organized  and  ad- 
ministered in  a  uniformed  manner;  but  this  provision  and 
principle  was  nullified  by  the  fact  that  it  was  not  applied  in 
Bavaria  and  in  Wurtemberg,  these  states  having  in  virtue  of 
special  treaties  "particular"  rights.  But  these  rights  were 
annulled  by  the  present  constitution. 

Finally  it  must  be  noted  that  Articles  89  and  97  of  the 
Constitution  granted  the  Reich  the  right  to  administer  the 
railroads  and  the  waterways  that  served  the  general  com- 
merce. This  right  the  Reich  made  use  of  in  appropriating  in 
April,  1920,  the  railroads  belonging  to  the  various  states. 

2.  The  second  group  of  subjects  entering  the  province  of 
the  Reich's  authority  consisted  of  matters  on  which  the 
Constitution  gave  to  the  Reich  the  right  to  legislate  by 
priority,  without  thereby  excluding  the  legislative  authorities 
of  the  various  states,  so  that  there  could  exist  concurrent 
legislation  in  the  Reich  and  in  the  States,  the  states  retaining 


64  THE  GERMAN  CONSTITUTION 

the  right  to  legishite  as  long  as  the  Reich  does  not  use  its  own 
right  to  legislate  on  these  matters. 

This  group  is  defined  in  the  Constitution  by  Articles  7,  8 
and  9. 

Article  7  sums  up  briefly,  as  did  Article  4  of  the  old  Consti- 
tution, the  province  of  concurrent  legislation,  but  adds  con- 
siderably to  the  enumeration  strengthening  here  the  unity  of 
the  Reich  and  adding  to  the  subjects  which  enter  into  the 
concurrent  legislative  competence  of  the  Reich  all  such  im- 
portant matters  as  assistance  and  care  to  be  given  to  mothers, 
infants,  children  and  youths;  also  questions  relating  to  pro- 
fessional representation,  to  the  socialization  of  natural  wealth, 
to  economic  enterprises  as  well  as  the  organization  of  collective 
enterprises.  To  this,  strengthening  still  further  the  com- 
petence of  the  Reich,  Article  12,  Section  2,  adds  that  the  gov- 
ernment of  the  Reich  has  the  right  to  veto  laws  passed  by 
the  states  dealing  with  socialization,  if  these  laws  touch  the 
well-being  of  the  whole  population  of  the  Reich. 

Article  8  introduces  in  the  Constitution,  in  spite  of  the  vio- 
lent opposition  of  the  states,  the  principle  of  financial  sov- 
ereignty of  the  Reich  and  fiscal  centralization  therein.  This 
article  gives  to  the  Reich  the  right  to  take  possession  of  all 
sources  of  revenue,  stipulating,  however,  that  it  must  leave 
to  the  states  resources  sufficient  for  their  existence.  This 
provision  constitutes  an  important  advance  along  the  road  to 
the  unity  of  the  Reich  and  strengthens  considerably  the  finan- 
cial competence  of  the  Reich  compared  to  its  former  situation. 

Article  9  also  deals  with  the  concurrent  authority  of  the 
Reich  in  matters  concerning  the  public  weal  and  the  protec- 
tion of  order  and  public  security;  but  under  this  head  there 
is  the  limitation,  "to  the  extent  that  it  shall  become  necessary 
to  pass  uniform  legislation."  This  limitation,  however,  is  of 
no  particular  importance,  for  as  with  the  matters  dealt  with 
in  Article  7  the  R.eich  does  not  make  use  of  its  right  of  legis- 
lation except  as  it  feels  the  need  for  it.    The  restriction  pro- 


AUTHORITY  OF  NATIONAL  LAWS  65 

vided  by  Article  9  is  explained  by  the  fact  that  the  authority 
of  the  Reich  in  these  matters  naturally  met  resistance  on  the 
part  of  the  states  and  that  a  compromise  had  to  be  effected; 
they  came  to  the  agreement  that  the  Reich  would  not  take 
up  these  questions  in  advance  and  in  the  first  instance. 

3.  Besides  ''exclusive"  and  "concurrent"  legislation  there 
is  also  "normative"  legislation.  This  is  provided  by  Articles 
10  and  11  and  consists  in  the  right  of  the  Reich  to  "lay  down 
principles  simply  leaving  the  details  to  be  enacted  and  car- 
ried out  by  the  legislators  of  the  state." 

According  to  Article  10  in  this  kind  of  legislation  are  in- 
cluded matters  of  vital  importance  from  the  points  of  view  of 
culture  and  of  social  considerations.  Already  in  its  second 
part  the  Constitution  enacts  a  certain  number  of  principles 
to  which  both  the  legislators  of  the  Reich  and  of  the  states 
are  subjected. 

Article  11  deals  with  the  "normative"  competence  of  the 
Reich  over  financial  legislation  of  the  states.  It  was  necessary 
that  the  Reich  legislate  on  this  question  for  otherwise  there 
was  the  fear  that  the  states,  in  attending  to  their  own  financial 
needs,  would  drain  sources  of  revenue  needed  by  the  Reich. 

II. — AUTHORITY   OF   NATIONAL   OVER   STATE  LAWS. 

However  precise  and  rigorous  may  be  the  division  of  the 
authority  between  the  Reich  and  the  states,  conflicts  may 
nevertheless  arise  between  the  two.  In  such  cases  it  was 
natural  that  the  Reich  should  claim  for  its  laws,  "the  author- 
ity of  Empire  surpasses  the  authority  of  states." 

3. — THE  ADMINISTRATIVE  SERVICES  OF  THE  REICH. 

Before  the  Revolution  the  Reich  did  not  have  in  principle 
an  administration  proper  to  it;  the  execution  of  tiic  laws  of 
the  Empire  were  as  a  general  rule  assured  by  the  functionaries 
of  the  member-states  under  the  control  of  the  Reich.  The 
new  Constitution  continued,  it  is  true,  the  same  principle  but 


I 


66  THE  GERMAN  CONSTITUTION 

it  provided  exceptions  of  the  first  importance.    Three  hypoth° 
eses  must  be  noted  here: 

1.  Certain  powers  belong  exclusively  to  the  Reich.  They 
are  those  which  we  have  enumerated  as  contained  in  Article  6. 
The  Reich  has  the  exclusive  right  to  legislate  on  these  matters, 
but  in  addition  it  has  also  the  sole  right  to  execute  these 
laws;  that  is  to  say,  it  creates  and  directs  the  administrative 
services  necessary  to  assure  the  application  of  the  provisions 
which  it  has  the  exclusive  right  to  promulgate.  Foreign  af- 
fairs, the  army,  the  navy,  etc.,  are  administered  directly  by 
the  Reich.  But  in  addition  in  matters  that  belong  concur- 
rently both  to  the  Reich  and  to  the  State  and  which  have 
been  placed  in  the  hands  of  the  Reich  the  latter  has  created 
a  special  administration  which  it  directs  itself,  that  of  finances. 

2.  In  other  cases  in  which  the  Reich  has  the  right  to  leg- 
islate and  uses  it,  it  yet  leaves  the  care  of  the  execution  of 
these  laws  to  the  functionaries  of  the  State.  Although  these 
public  ser\aces  are  instituted  and  organized  according  to  the 
laws  of  the  Reich  the  functioning  is  assured  exclusively  by 
the  oflScials  of  the  state.  There  was  formerly,  and  there  still 
is  to-day,  the  hypothesis  of  authority  in  common  in  matters  of 
public  security,  assistance  and  the  Reich. 

3.  In  a  third  series  of  cases,  finally,  the  states  have  ex- 
clusive competence.    They  may  both  legislate  and  administer. 

Of  these  three  hypotheses  the  one  most  important  from  our 
present  point  of  view  is  the  first.  The  recognized  right  of  the 
Reich  to  have  public  services  designed  to  apply  its  laws  and 
acts,  permits  it  to  organize  public  administrations  and  to  have 
functionaries  subordinate  directly  to  the  Reich  throughout  the 
whole  German  territory.  The  unity  of  the  Reich  is  greatly 
strengthened  by  the  fact  that  the  principal  public  services — 
the  army,  finances,  diplomatic  corps,  postal  telegraphs,  rail- 
roads— are  hereafter  completely  concentrated  in  its  hands. 

In  addition  when  the  Reich  fails  to  organize  its  own  ad- 
ministration or  when  it  has  left  to  the  states  the  task  of  leg- 


AUTHORITY  OF  NATIONAL  LAWS  67 

islating  on  subjects  that  are  contained  in  the  legislative  com- 
petence of  the  Reich,  the  latter  is  far  from  being  weakened 
in  its  power  therein.  For  it  possesses  in  such  cases  the  Right 
of  Control  over  the  administrative  authorities  of  these  states, 
and  this  right  was  notably  strengthened  by  the  Constitution 
of  1919  as  compared  to  its  former  power. 

According  to  the  terms  of  Article  15,  paragraph  2,  control 
by  the  Reich  may  be  exercised  by  the  government  of  the 
Reich  in  matters  on  which  the  latter  has  the  right  to  legis- 
late. That  means  that  control  on  the  part  of  the  Reich 
extends  not  only  to  the  domains  which  have  been  already 
assigned  to  it  by  the  legislation  of  the  Reich,  but  also  to 
matters  in  which  it  has  the  right  to  legislate  even  though  it 
has  not  yet  made  use  of  such  right. 

The  means  by  which  these  rights  of  control  are  exercised 
are  the  following: 

(a)  General  instructions  addressed  to  the  authorities  of  the 
states  for  the  execution  of  the  laws  of  the  Reich.  These  in- 
structions of  the  government  of  the  Reich  are  compulsory  on 
the  different  authorities  of  the  states.  But  instructions  to 
subordinate  authorities  of  these  states  must  not  be  given  in 
particular  applications  of  these  laws,  for  otherwise  these 
authorities  might  receive  contradictory  orders  from  different 
sources;  and  in  that  way  the  governments  of  the  state  might 
lose  all  authority. 

(b)  The  control  of  the  Reich  is  exercised  in  addition  by 
sending  to  the  governments  of  the  states  commissioners 
charged  with  the  supervising  of  the  execution  of  the  laws  of 
the  Reich,  Such  commissioners  may  even  be  sent,  with  the 
consent  of  the  governments  of  the  states,  to  subordinate  au- 
thorities. In  the  latter  case  it  must  be  admitted  even  that  the 
Reich  has  the  right  to  demand  that  the  files  of  the  state 
authorities  be  opened  to  it  and  with  the  consent  of  the  gov- 
ernments of  the  states  the  Reich  may  examine  witnesses,  take 
testimony  and  make  surveys  within  the  provinces  of  the  state. 


68  THE  GERMAN  CONSTITUTION 

(c)  Finally  the  Reich  may  demand  that  lapses  observed 
in  the  execution  of  its  laws  be  corrected. 

The  ensemble  of  all  these  measures  constitutes  a  strengthen- 
ing of  the  right  of  control  by  the  Reich  as  compared  to  the 
former  regime.  On  the  one  hand,  the  recognized  right  of  the 
Reich  to  send  commissioners  to  subordinate  authorities  with, 
it  is  true,  the  consent  of  the  governments  of  the  states,  is  new. 
Formerly  such  imperial  commissioners  were  received  only 
by  the  governments  of  the  states  themselves,  instead  of  allow- 
ing immediate  access  to  subordinates  as  to-day.  In  addition 
and  above  all  when  diflSculties  arise  especially  from  the  insuffi- 
ciency of  the  measures  taken  by  the  authorities  of  the  states, 
the  power  to  settle  these  difficulties  no  longer  belongs  as 
formerly  to  a  college  constituted  by  the  representatives  of 
states,  such  as  was  the  Bundesrat;  but  is  now  the  function 
of  the  independent  organs  of  the  Reich,  such  as  the  govern- 
ment of  the  Reich  or  the  High  Court  of  Justice  of  the  Reich. 

4. — JUSTICE    AND    THE    HIGH    COURT   OF    JUSTICE. 

The  centralizing  influence  of  the  Constituent  Assembly 
is  manifested,  finally,  in  the  provisions  which  it  adopted 
relating  to  the  organization  of  justice.  We  know  that  in 
Germany  justice,  particularly  such  as  is  regulated  by  the  laws 
on  the  organization  of  justice,  the  Code  of  Civil  Procedure,  the 
Code  of  Criminal  Procedure,  is  administered  by  the  tribunals 
of  the  states.  The  Reich  had  only  one  judicial  organism, 
the  Reichsgericht,  whose  powers  are  in  principle  similar  to 
those  of  the  Cour  de  Cassation  (the  highest  court  of  appeal  in 
France).  The  new  Constitution  has  changed  nothing  in  this 
system.  A  proposal  submitted  in  committee  for  the  purpose 
of  giving  the  Reich  full  control  over  the  administration  of 
justice  and  making  all  judges  functionaries  of  the  Reich,  was 
defeated.  Now  as  before  the  sole  authority  of  the  Reich  in 
this  domain  lies  in  the  Reichsgericht. 

But  the  Constitution  has  introduced  a  new  judicial  or- 


JURIDICAL  AND  POLITICAL  STRUCTURE     69 

ganism  whose  authority  extends  over  all  important  cases  of  a 
national  scope,  and  constitutes  thereby  a  powerful  element  in 
centralization:  that  is  the  High  Court  of  Justice.  The  task 
of  organizing  this  Court  is  left  by  the  Constitution  to  a  special 
law.  Until  this  law  enters  into  effect  the  powers  of  this  Court 
are  entrusted  to  a  senate  of  seven  members,  of  which  four  are 
nominated  by  the  Reichstag  and  two  by  the  Reichsgericht. 

The  authority  of  the  High  Court  of  Justice  is  regulated 
by  the  Constitution.  It  is  this  Court  that  passes  on  the 
difiSculties  that  may  arise  between  states  in  the  cases  of 
division  of  patrimony  where  changes  or  separations  of  terri- 
tories are  involved.  It  is  this  Court  also  that  decides  con- 
stitutional difficulties  within  a  state  when  there  is  no  compe- 
tent tribunal  within  the  state  to  deal  with  such  a  question. 
It  is  this  Court  that  adjudicates  disputes  as  to  public  rights 
that  arise  between  different  states  or  between  a  state  and  the 
Reich,  when  there  is  no  other  tribunal  of  the  Reich  that  has 
jurisdiction  over  such  a  dispute.  This  Court  in  addition  pre- 
sides over  actions  instituted  by  the  Reichstag  against  the 
President,  the  Chancellor  and  the  Ministers  of  the  Reich  for 
culpable  violation  of  the  Constitution  or  the  laws  of  the  Reich. 

SECTION  III 

THE   JURIDICAL  AND   POLITICAL   STRUCTURE 
OF   THE   REICH 

Having  described  the  provisions  which  regulate  the  distri- 
bution of  authority  and  territory  and  mark  the  reciprocal 
relations  of  the  Reich  and  the  States  we  may  now  attempt  to 
define  the  Reich  and  to  give  precision  to  its  relation  to  the 
States,  politically  and  juridically. 

1. — IS  THE  REICH  A  FEDERAL  STATE? 

Formerly  when  one  spoke  of  the  German  Constitution  the 
question  was,  "Is  the  German  Empire  a  federal  state  or  a 


70         THE  GERMAN  CONSTITUTION 

confederation  of  states?"  To-day  when  speaking  of  the  Con- 
stitution of  Weimar  the  question  is  asked,  "Is  the  Reich  a 
federal  state  or  a  single  state?" 

Nearly  all  the  German  jurists  have  attempted  to  answer 
this  question  and  are  almost  equally  divided  in  the  answer. 
Some  of  them  observe  that  the  states  have  no  longer  the  power 
to  fix  the  form  of  their  governments  and  that  they  can  no 
longer  change  the  organic  provisions  of  their  Constitutions; 
that  the  Reich  can  prescribe  changes  in  territory  against  their 
will  and  even  order  new  formations  of  the  country.  The 
Reich  is  in  control  of  sovereignty  and  of  the  life  and  death  of 
German  states.  It  may  against  their  will  deprive  them  of 
their  sovereignty.  The  new  financial  constitution  of  the 
Reich,  which  entered  into  operation  on  October  1,  1919,  has 
taken  away  finally  whatever  had  remained  of  their  state 
rights,  and  all  financial  powers  of  the  states  have  passed  into 
the  hands  of  the  Reich.  The  states  are  no  longer  independent 
states,  they  are  only  autonomous  administrative  bodies  within 
the  Reich.  The  Reich  has  become  a  single  decentralized 
state.^ 

The  other  jurists  emphasize  the  characteristics  of  the  States 
which  bring  them  nearer  in  nature  to  states  properly  so  called. 
The  Constitution  has  recognised  that  if  sovereignty  in  the 
Reich  emanates  from  all  the  people,  sovereignty  in  the  states 
also  emanates  directly  from  the  people  of  those  states.  From 
this  it  follows  as  a  logical  consequence  that  this  power  is  exer- 
cised within  the  states,  in  the  matters  within  their  jurisdiction 
and  through  the  organs  of  the  states  on  the  basis  of  their 
Constitution.  The  Constitution  has  admitted  that  the  states 
have  their  own  proper  territory  since  the  territory  of  the 
Reich  is  composed  of  the  territories  of  the  state.  The  latter 
have  also  their  own  individual  legislative  and  administrative 

*See  Giese,  Die  Reichsverjassung,  vora  II,  August,  1919,  p.  65;  Jacobi, 
Einheitsstaat  oder  Bundesstaat,  p.  6,  et  seq.;  Poetsch,  Handausgabe  der 
Reichsverjassung,  p.  25,  et  seq.;  Weazel,  Festgabe  fiir  Bergbohn,  1919, 
p.  159,  et  seq. 


JURIDICAL  AND  POLITICAL  STRUCTURE      71 

organizations.  It  need  only  be  added  that  if  the  Reich  disap- 
peared the  states  could  still  subsist  and  continue  to  live  ac- 
cording to  their  Constitutions,  which  proves  that  their  sov- 
ereignty belongs  to  them  and  is  not  surrendered  to  the  Reich. 
Finally,  and  this  is  the  essential  argument,  in  the  Reichstag 
the  states  are  represented  as  such  and  as  such  they  participate 
in  the  formation  of  the  will  of  the  Reich.  This  makes  it, 
therefore,  a  federated  state.^ 

The  National  Assembly  did  not  want  to  take  a  position  on 
this  question  and  of  its  own  accord  adopted  an  entirely  colour- 
less declaration  on  it  which  left  the  doors  open  to  all  opinions. 
While  the  individual  states  were  called  in  the  Constitution  of 
1871  "federated  states,"  they  were  thereafter  called  "repub- 
lics" in  the  Preuss  draft,  "member-states"  in  the  draft  sub- 
mitted by  the  government  and  finally  "lander"  in  the  draft  of 
the  constitutional  commission  and  in  the  definitive  text. 

Actually,  however,  it  is  difficult  to  understand  the  interest 
in  this  question.  What  difference  does  it  make  whether  the 
states  are  states  or  provinces,  so  long  as  their  powers  and 
obligations  are  strictly  defined  by  the  Constitution?  From 
their  names  alone  we  can  deduce  nothing  practically  inform- 
ative about  their  nature.  It  is  an  academic  question  which 
has  not  progressed  one  step  in  three  generations,  which  one 
studies  but  does  nothing  about,  for  there  is  no  reality  in  it. 

In  fact  it  is  not  possible  to  indicate  a  precise  and  material 
criterion  according  to  which  one  should  differentiate  between 
a  state  and  an  autonomous  province  which  is  not  entitled  to 
the  name  of  state. 

There  are  no  clearly  defined  categories  which  one  can  label 
once  for  all  and  among  which  one  can  distribute  the  different 
state  and  provincial  collectivities. 

There  are  only  collectivities  that  are  according  to  different 

circumstances  more  or  less  broad  in  power.    They  differ  one 

*See  Stier-Somblo,  op.  cit.,  p.  79,  et  seq.;  Wjvltcr  Jcllinok,  Revolu- 
tion und  ReichsverfassuDR,  in  Jahrbuch  des  offcntlichcn  Rcchts,  p.  81; 
Amdt,  Reichsverfassung,  1919,  p.  35. 


72  THE  GERMAN  CONSTITUTION 

from  another  not  in  quality  or  in  nature  but  in  the  quantity, 
in  the  total  powers  which  they  may  exercise.  Here  all  one 
can  ask  is,  whether  the  states,  as  they  are  defined  by  the  Con- 
stitution, resemble  more  the  type  generally  called  a  state,  or 
the  type  generally  called  autonomous  province;  and  one  can 
say,  if  one  wishes,  that  they  are  more  the  former  than  the 
latter.^ 

2. — PRUSSIA  AND   THE   REICH. 

There  is  a  second  question  of  more  immediate  interest;  and 
that  is  to  know  how  the  political  forces  in  the  Reich  are 
divided  and  in  what  relation  they  find  themselves  one  to 
another. 

The  Constitution  has  increased  the  power  of  the  central 
state  already  great  under  the  old  régime  as  compared  with 
the  individual  states;  the  states  have  lost  considerably  in  their 
importance  and  this  in  the  measure  that  the  Reich  has  gained. 
They  have  undoubtedly  the  theoretical  right  to  legislate;  but 
the  Reich  legislates  on  all  matters  of  any  importance  and  the 
legislative  domain  of  the  states  is  thereby  reduced  almost 
to  nothing. 

They  have  in  principle  judiciary  and  administrative  serv- 
ices, but  in  all  important  respects  such  as  relations  with 
foreign  states,  military  administration,  railroads,  waterways, 
posts  and  telegraphs,  their  authority  has  been  taken  away; 
the  whole  domain  of  financial  legislation  has  also  passed  to 
the  Reich  and  they  can  no  longer  exist  except  through  sub- 
sidies from  the  Reich. 

They  have  a  territorial  sovereignty;  but  a  constitutional 

*In  reality  the  states  still  exchange  ambassadors  and,  in  the  official 
German  language,  the  agreements  reached  either  between  two  states  or 
several  carry  the  name  of  Staatsvertrage  (international  treaties).  See 
particularly  the  international  treaty  adopted  between  the  Reich  on  the 
one  hand,  and  Prussia,  Bavaria,  Saxony,  Wurtemberg,  Baden,  Hesse, 
Mecklenburg-Schwerin  and  Oldenburg  on  the  other,  concerning  the 
transfer  to  the  Reich  of  the  railroads  of  these  states,  the  treaty  ap- 
proved by  the  National  Assembly,  April  30,  1920. 


PRUSSIA  AND  THE  REICH  73 

law,  and  in  certain  cases  even  an  ordinary  law  may  modify 
that  territory  against  their  will. 

They  still  have  their  citizens;  but  every  German  may  exer- 
cise in  every  state  of  the  Reich  the  same  rights  and  duties 
as  those  exercised  by  a  citizen  of  his  own  state. 

In  reality  the  states  no  longer  count  and  the  Reich  is  all 
powerful.  Such  is  the  situation  in  which  the  centralizing 
tendencies  of  the  Constituent  Assembly  have  culminated.  But 
we  come  back  to  it  in  a  problem  that  presents  itself  as  fol- 
lows: Has  Prussia  retained  the  hegemony  which  it  exercised 
actually  under  the  Empire  and  has  it  kept  it  to  the  extent 
that  any  increase  in  the  centralizing  character  of  the  republic 
will  only  increase  the  power  of  Prussia  in  the  Germany  of 
to-day?  Professor  Schiicking  said  one  day  to  the  National 
Assembly  that  all  history  of  Germany  past  and  future  can  be 
summed  up  with,  "Up  to  1867  Prussia  was  against  the  Reich; 
from  1867  to  1918  Prussia  was  above  the  Reich;  the  Reich 
must  hereafter  be  above  Prussia."  ^  Will  this  consumma- 
tion ever  be  attained?  To  what  extent  has  the  Prussian 
hegemony  been  diminished  since  November,  1918? 

The  Constitution  embodies  several  important  provisions 
affecting  this  question.  Prussia  has  lost  all  the  advantages 
it  derived  from  the  fact  that  the  German  Emperor  was  the 
King  of  Prussia;  the  privileges  it  enjoyed  in  the  legislative 
initiative,  in  military  matters  and  in  fiscal  affairs  have  disap- 
peared ;  the  Bundesrat,  in  which  it  played  a  preponderant  rôle, 
and  which  was  in  itself  the  most  powerful  organ  of  the  Em- 
pire, is  now  reduced  to  a  Reichsrat  which  can  no  longer  pre- 
vent anything.  There  is  no  longer  a  Chancellor  nominated  by 
an  Emperor-King  and  chief  of  all  the  politique  of  the  Empire 
and  of  the  entire  administration;  the  powers  of  the  Emperor 
have  been  transferred  to  the  President  of  the  Reich  elected  by 
all  the  people;  Prussia  may  even  against  its  will — though  not 

*See  Heilfron,  Die  deutsche  Nationalversammlung  im  Jahre,  1919, 
vol.  ii,  p.  1176. 


74  THE  GERMAN  CONSTITUTION 

for  two  years,  it  is  true — be  deprived  of  several  sections  of 
its  territory  and  see  them  erected  into  new  states  or  attached 
to  still  other  states.  All  these  diminutions  of  right  have  been 
consented  to  by  Prussia  itself.  Are  they  sufficient  to  suppress 
totally  the  political  domination  which  Prussia  exercised  over 
the  German  states,  small  and  great?  It  does  not  seem  so,  for 
there  still  remains  this  paramount  fact:  Prussia  represents 
four-sevenths  of  the  total  population  of  the  Reich;  that  is  to 
say,  Prussia  alone  has  the  majority.  The  Reich  being  a 
democracy  wherein  the  majority  is  sovereign  Prussia  is 
assured  in  important  questions  of  the  opportunity  to  impose 
its  will  always  on  Germany. 

The  remedy  is  evidently  to  divide  Prussia  into  several 
states.  But  the  Constituent  Assembly  did  not  have  the  desire 
— or  the  force — to  resort  to  this  ;  so  that  to-day  Prussia  is  still 
above  the  Reich. 

Perhaps  another  remedy  is  possible;  and  it  is  on  this  that 
those  who  wish  to  place  the  Reich  above  Prussia  base  all 
their  hope.  That  is  to  give  to  Prussian  provinces  a  very 
broad  autonomy  in  such  a  way  that  their  powers  being  pro- 
gressively increased,  they  will  join  little  by  little  the  states 
whose  powers  are  diminishing.  There  must  be  effected  a 
decentralization  as  complete  as  possible,  in  such  a  way  that 
these  provinces  while  still  remaining  in  the  state  of  Prussia 
will  have  sufficient  means  to  be  able  to  live  individual  lives 
and  to  impress  their  special  temperaments  on  the  different 
acts  of  their  political  life.  It  would  be  necessary — and  it  is 
there  that  the  problem  is  most  difficult — to  maintain  in  these 
provinces  Prussian  legislation  and  at  the  same  time  give  them 
the  right  also  to  legislate  and  assure  them  a  sufficiently 
independent  administration. 

These  are  only  projects  and  one  cannot  tell  to  what  extent 
they  are  realizable.  We  shall  see,  however,  that  the  Constitu- 
tion of  Weimar  has  timidly  commenced  an  effort  to  realize 
them. 


CHAPTER    III 

THE    DEMOCRATIC    PRINCIPLE 

If  the  National  Assembly  has  not  completely  realized  the 
unitary  state  and  has  allowed  traces  of  the  federal  regime  to 
remain,  it  has  fully  admitted  the  principle  of  national  sover- 
eignty and  has  applied  it  to  a  greater  extent  than  any  other 
country  in  the  world. 

SECTION     I 

THE  PRINCIPLE 

The  democratic  principle  was  adopted  by  the  majority  of 
the  National  Assembly  without  any  difficulty.  But  in  the 
public  opinion  there  became  manifest  certain  tendencies  which 
are  either  directly  contrary  to  this  principle  or  whose  con- 
sistency with  this  principle  is  debatable;  and  some  of  them 
have  received  and  are  still  gaining  active  and  influential 
adherence. 

It  is  important  therefore  to  define  in  reference  to  the  prin- 
ciple of  national  sovereignty  the  theories  to  which  it  finds 
itself  subjected  in  practice. 

1, — THE  POWER  OF  THE  STATE  IS  DERIVED  FROM  THE  PEOPLE. 

Democracy  is  defined  as  government  by  the  people;  a 
democratic  government  is  a  government  in  which  sovereignty 
resides  in  the  people,  or,  to  speak  more  precisely,  one  in  which 
the  will  of  the  majority  determines  sovereignty. 

That  this  principle  was  completely  ignored  in  practice  in 
Germany  before  the  Revolution  we  already  know.  According 
to  the  Constitution  of  1871  sovereignty  belonged  to  the  cn- 

75 


76  THE  GERMAN  CONSTITUTION 

semble  of  confederated  princes,  Germany  being  governed  by 
an  association  of  monarchs  under  the  all-powerful  direction 
of  one  of  them,  the  King  of  Prussia. 

Such  a  system  obviously  could  not  survive  the  disappear- 
ance of  the  monarchs  themselves;  and  after  the  Revolution 
the  democratic  principle,  to  which  Bismarck  had  given  the 
semblance  of  expression  in  creating  a  Reichstag  elected  by 
universal  suffrage,  became  fully  applied.  One  consideration 
contributed  above  all  to  the  establishment  of  government  by 
the  greatest  number:  The  German  Princes  had  governed  and 
had  conducted  themselves  as  monarchs  by  divine  right;  under 
their  régime  no  social  class  could  develop  to  which  a  certain 
political  power  could  be  given  over,  which  the  people  would 
become  accustomed  to  regard  as  authoritative.  There  was  in 
Germany  no  political  nobility,  no  bourgeoisie  invested  with 
political  power.  So  that  when  sovereignty  fell  from  the  weak- 
ened hands  of  the  monarchs  it  could  be  taken  over  only  by 
the  people. 

The  people  are  therefore  sovereign.  German  jurists  go  on 
to  say  that  the  people  cease  to  be  the  object  of  sovereignty 
and  become  the  subject  of  sovereignty. 

But  we  are  here  in  a  federal  state,  and  the  problem  becomes 
more  complicated  because  of  the  particular  form  of  the  state. 
For  there  are  here,  in  theory  at  least,  two  sovereignties:  that 
of  the  Reich,  and  that  of  the  State.  Which  is  the  primary 
sovereignty? 

In  committees  the  representatives  of  the  states  naturally 
supported  the  latter  of  these  alternatives.  For  them  the 
former  states  at  the  moment  of  signing  the  confederate  pact 
gave  up  to  the  federal  state  a  certain  number  of  their  powers; 
but  they  have  kept  others.  The  Revolution  has  changed 
nothing  in  this  situation;  it  has  thrown  out  the  dynasties,  but 
it  has  not  at  all  changed  the  integrity  and  the  rights  of  the 
individual  states.  It  is  in  these  states  therefore  that  sov- 
ereignty originally  resides.    The  sovereignty  of  the  Reich  is 


THE  COUNCILS  SYSTEM  77 

only  derived;  although  the  Reich  is  no  longer  an  alliance  of 
Princes,  it  is  certainly  an  alliance  of  the  Republics  that 
compose  it. 

This  theory  has  not  prevailed.  It  is  true  that  one  could  not 
go  so  far  as  to  admit  that  the  sovereignty  of  the  states  is 
derived  from  that  of  the  Reich  and  is  given  to  them  by  the 
latter;  but  it  is  equally  true  that  it  cannot  be  admitted  that 
the  sovereignty  of  the  states  is  expressly  limited  by  the  rights 
that  the  Reich  attributes  to  itself.  It  has  been  admitted,  there- 
fore, that  the  people  is  sovereign  in  the  Reich,  but  that  it  is 
equally  and  by  the  same  title  sovereign  in  the  states  in  the 
spheres  of  action  which  are  left  to  the  states. 

Such  is  the  principle  proclaimed  by  Article  1,  paragraph  2, 
of  the  Constitution.  That  does  not  mean  to  say,  however, 
that  attempts  and  proposals  were  not  made  to  make  a  breach 
in  it  or  to  draw  from  it  debatable  deductions.  A  study  of 
these  attempts  and  proposals  will  enable  us  to  understand 
more  precisely  the  sense  and  import  of  this  principle. 

2. — THE   COUNCILS   SYSTEM,   OR  THE  DICTATORSHIP   OF  THE 
PROLETARIAT. 

The  first  projects  formulated  and  presented  against  this 
principle,  and  to  the  realization  of  which  the  Independents 
and  the  Communists  bent  every  effort,  may  be  characterized 
in  a  word:  they  aimed  to  give  over  all  political  and  economic 
power  to  Workers  Councils,  to  organize  the  dictatorship  of  the 
proletariat. 

These  proposals,  such  as  developed  particularly  by  Diiumig, 
theoretician  of  the  Independents,  may  be  summed  up  as 
follows: 

A  parliamentary  system — the  proof  is  at  hand — is  powerless 
to  bring  about  the  triumph  of  social  democracy.  The  revo- 
lution throughout  the  world,  if  it  is  to  win  quickly — and  it 
must  win  quickly,  for  the  proletariat  can  no  longer  wait — 
cannot  achieve  its  aims  except  by   other  methods.     As   in 


78  THE  GERMAN  CONSTITUTION 

Russia  in  1905  and  in  1917,  so  in  Germany  the  necessary 
change  can  be  only  the  product  of  Workers  Councils.  It  is 
only  within  the  Councils  that  the  union  of  the  proletariat  is 
possible.  Only  the  Councils  assure  the  co-operation  of  manual 
and  of  intellectual  workers,  which  Russia  had  not  been  able 
as  yet  to  realize  but  which  should  be  and  can  be  accomplished. 
The  system  of  Councils  in  its  final  aspect  realizes  the  most 
perfect  form  of  democracy,  for  it  gives  political  and  economic 
equality  to  all  its  citizens.  While  waiting  its  ultimate 
triumph,  however,  it  may  be  necessary  to  proclaim  the  dic- 
tatorship of  the  proletariat;  but  this  dictatorship  will  not  be 
any  heavier  than  that  which  is  borne  by  the  proletariat  itself. 
It  will  last  if  necessary  till  the  complete  fusion  of  social  classes 
does  away  with  the  class  struggle,  till  the  advent  of  integral 
socialism. 

Therefore,  all  power  to  the  Councils  !  No  division  of  influ- 
ence, no  juxtaposition  of  political  assemblies  and  economic 
councils!  The  Councils  are  an  indispensable  instrument  to 
substitute  permanently  a  socialist  for  a  capitalist  régime. 
That  is  to  say,  they  should  fulfil  two  series  of  functions: 
political  and  economic.  Politically  the  Councils  system  unites 
in  the  same  organism  both  parliament  and  administration, 
thus  rendering  possible  that  constant  control  of  administra- 
tion which  the  parliamentary  régime  is  incapable  of  exercising, 
and  maintaining  a  permanent  supervision  of  the  elected  by 
the  electors.  Economically  the  Councils  watch  over  the  exe- 
cution of  socialization  measures;  later  they  become  the  regu- 
lators of  production  and  consumption. 

To  this  duality  of  functions  there  corresponds  a  double 
organization.  The  political  system  rests  on  Workers  Councils 
properly  so  called  (Arbeiterrate)  ;  the  economic  system  rests 
on  Factory  Workers  Councils  (Betriebsrate) . 

In  each  commtme,  workers,  employés,  and  peasants,  or- 
ganized as  much  as  possible  in  vocational  groups,  elect  worker 
councillors,  one  for  every  1,000  electors.     These  councillors 


THE  COUNCILS  SYSTEM  79 

have  as  their  task,  while  awaiting  the  final  organization  of  the 
system  of  Councils,  the  control  of  municipal  administration. 
Their  delegates  constitute  Local  Councils  (Kreisarbeiterrate)  ; 
the  delegates  of  the  latter,  in  turn,  make  up  District  Councils 
(Bezirksrate).  In  addition,  so  long  as  the  German  Republic 
is  still  not  united,  there  will  sit  in  the  capital  of  each  state 
a  Central  Council  (Landeszentralrat) .  These  different  or- 
ganizations are  respectively  charged  with  the  control  of  ad- 
ministration of  each  degree  of  the  hierarchy.  At  the  summit 
of  the  edifice,  finally,  sits  the  Congress  of  Councils,  which 
controls  all  political  power,  and  whose  meetings  must  take 
place  at  least  every  three  months.  This  congress  elects  a 
Central  Council  (Zentralrat)  which  appoints  and  controls  the 
Commissars  of  the  People.  It  is  in  a  word  a  copy  of  the 
Russian  system. 

Parallel  to  this  political  organization,  there  is  created  in 
each  factory,  shop,  etc.,  a  Factory  Workers  Council  (Be- 
triebsrat),  elected  by  the  workers  and  employés  in  the  pro- 
portion of  one  delegate  to  100  electors.  Small  factories  and 
rural  enterprises  are  grouped  so  as  to  form  electoral  units; 
the  same  with  the  professions.  The  Factory  Workers  Coun- 
cils are  charged  with  the  defence  of  the  interests  of  the  per- 
sonnel, and  with  the  control  of  the  enterprises  in  which  they 
are  employed.  They  co-operate  in  the  application  of  measures 
for  socialization.  But  their  action,  limited  to  the  factory  or 
the  shop,  cannot  pretend  to  embrace  all  the  problems  of  pro- 
duction. Germany  is  divided,  therefore,  into  a  certain  number 
of  economic  districts  (Wirtschaftsbezirke).  In  each  of  these 
districts  the  Factory  Workers  Councils  of  each  branch  of 
industry  and  of  commerce  designate  a  Council  of  Groups  of 
this  district  (Bezirksgrupenrat) .  All  the  Councils  of  Groups 
in  the  same  district  designate  delegates  whose  assembly  con- 
stitutes the  Economic  Council  of  that  district  (Bczirkswirt- 
schaftsrat) .  In  the  same  way  the  district  Councils  of  Groups 
of  each  branch  of  industry  elect  for  the  whole  Reich  a  Council 


80  THE  GERMAN  CONSTITUTION 

of  Groups  of  the  Reich  (Reichswirtschaftsrat),  to  which  is 
entrusted  the  general  supervision  of  economic  life,  and  which, 
in  accord  with  the  Central  Council,  determines  during  the 
transitional  period  the  necessary  measures  for  the  mainte- 
nance of  production  and  the  application  of  the  laws  for  social- 
ization. The  Economic  Councils  of  the  districts  and  the 
National  Council  may  add  to  themselves,  if  they  deem  fit, 
experts,  economists,  etc. 

The  whole  system,  so  simple  theoretically,  rests  on  the 
elections  of  workers  as  councillors  in  the  Workers  Councils  and 
in  the  Factory  Workers  Councils.  The  composition  of  the 
electoral  body  therefore  takes  on  a  particular  importance. 
The  fundamental  principle,  in  which  Daumig  and  his  friends 
would  tolerate  no  diminution,  was  that  no  employer  as  such 
could  take  part  in  the  system.  Only  employés  are  eligible  as 
electors.  An  exception  is  made  in  favour  of  peasants  "who  do 
not  permanently  employ  farm  hands."  A  second  axiom  stipu- 
lates that  those  elected  must  remain  under  the  constant  control 
of  the  electors.  The  electoral  body  is  therefore  free  to  recall 
them  whenever  it  seems  desirable  to  it.  In  any  event  a 
worker  councillor  must  not  remain  such  for  more  than  twelve 
months.  He  must  stay  a  worker  and  not  become  a  func- 
tionary. 

Such  is  the  organization  that  the  Independents  and  the 
Communists  proposed.  In  itself  lies  the  proof  that  it  is  con- 
trary to  the  democratic  principle;  for  only  part  of  the  nation, 
manual  and  intellectual  workers,  employés,  the  proletariat 
would  have  the  right  to  direct  public  affairs.  And  this  con- 
sideration, without  counting  all  the  other  criticisms  that  may 
be  made  against  the  system,  such  as  at  least  the  present  in- 
competence of  workers  to  govern,  the  necessary  establishment 
of  a  reign  of  terror,  etc.,  has  grouped  against  it  not  only  the 
bourgeois  parties  but  also  all  the  Social  Democrats,  who 
depend  for  the  triumph  of  the  socialist  idea  on  democratic 
and  parliamentary  means.    "I  do  not  wish  to  dwell  long  on 


THE  COUNCILS  SYSTEM 81 

the  study  of  the  question  of  'the  dictatorship  of  Workers 
Councils  versus  democracy,'  "  said  one  of  the  Social  Demo- 
cratic drafters  of  the  Constitution.  "It  is  sufficient  for  me 
to  show  that  this  dictatorship  is  in  contradiction  to  democ- 
racy, that  we  must  choose  between  dictatorship  by  a  minority 
on  the  one  hand,  and  democracy  or  government  by  the  ma- 
jority on  the  other.  The  Committee  on  the  Constitution  has 
declared  in  favour  of  democracy,  control  by  the  great  majority 
of  the  people.  The  idea,  therefore,  of  a  dictatorship  by  the 
Councils  is  rejected."  (Sinzheimer  in  the  session  of  July  21, 
1919,  of  the  Assembly;  see  Heilfron,  op.  cit.,  vol.  vi,  p.  4265.) 
From  the  side  of  the  Democrats  came  the  criticism,  "Those 
who  demand  all  power  for  the  Councils,  who  want  to  place 
between  the  hands  of  the  Councils  all  administration  and  all 
legislation  are  so  indefinite  as  to  the  means  of  realizing  their 
demands,  that  it  astonishes  one  .  .  .  that  a  programme,  so 
little  developed,  can  be  put  forward  without  the  least  explana- 
tion of  how  it  is  to  be  realized.  .  .  .  We  reject  the  granting  of 
political  right  to  the  Councils.  We  reject  above  all  the  dic- 
tatorship of  a  class  that  is  at  the  base  of  these  Councils, 
emphatically  and  unconditionally.  .  .  .  We  reject  also  the 
Councils  as  organs  of  control.  The  idea  of  organizing  the 
Councils  as  a  new  assembly  of  control,  side  by  side  with  each 
assembly  already  in  existence,  seems  to  us  incompatible  with 
democracy."  (Erkelenz,  session  of  the  National  Assembly, 
July  21,  1919.  See  Heilfron,  op.  cit.,  vol.  vi,  p.  4236-4328.) 
The  Councils  System  was,  therefore,  rejected  by  the  Na- 
tional Assembly.  It  must  be  observed,  however,  that  it  did 
not  remain  the  mere  formula  of  isolated  theoreticians.  The 
organizations  of  the  Councils,  in  line  with  the  plan  we  have 
just  pointed  out,  was  put  forward  as  the  programme  of  all  the 
Independents  and  the  Communists,  and,  as  we  will  see,  these 
two  parties  succeeded  in  casting  5,337,712  votes  in  the  elec- 
tions of  June  6,  1920,  sending  83  deputies  to  the  Reichstag. 


82  THE  GERMAN  CONSTITUTION 

3. — THE    CHAMBER   OF    L.\BOUR   OB   THE   VOCATIONAL 
PARLIAMENT. 

There  is  another  project  which  was  rejected  in  the  name  of 
the  democratic  principle  but  whose  partisans  declared  to  be 
compatible  with  this  principle — one  which  in  any  event  under 
different  modalities  has  determined  champions  in  almost  all 
the  parties.  That  is  the  plan  for  the  creation  of  a  Chamber 
of  Labour  (Kammer  der  Arbeit)  or  Vocational  Parliament. 

The  idea  of  granting  to  vocational  interests  a  special 
representation  is  not  new,  but  since  the  Revolution  it  has  been 
studied  in  Germany  by  a  group  of  publicists  and  students  of 
politics,  who  have  delved  perhaps  more  profoundly  than  ever 
before  into  the  project  and  have  given  it  a  new  form  by 
introducing  new  concepts  into  it. 

The  supporters  of  the  Chamber  of  Labour  declare  that  at 
the  present  time,  in  contemporary  states,  the  vital  duty  of  a 
government  is  to  organize  the  economic  life  of  the  nation. 
This  obligation  has  particular  force  in  a  country  whose  whole 
economy  had  been  overturned  and  ruined  by  a  disastrous  war 
and  revolution,  and  which,  unless  it  decides  to  enter  upon  a 
new  road,  runs  the  risk  of  crashing  under  the  burden  of  its 
foreign  and  domestic  debts. 

In  order  to  reconstruct  Germany  economically  one  cannot 
depend  on  a  political  parliament.  A  study  of  the  history  of 
the  parliamentary  system  brings  the  conviction  that  if  a 
parliament  has  proved  to  be  an  adequate  organ  of  political 
legislation,  it  is  nevertheless  admittedly  incapable  of  solving 
the  economic  and  social  problems  it  encounters.  The  par- 
liamentary system,  that  is  to  say,  the  system  that  consists 
of  the  formation  of  a  government  with  the  parties  of  the 
majority,  is  much  more  a  product  of  classical  liberalism  than 
the  creator  of  new  social  and  economic  forms.  All  the  ideas 
current  to-day  and  which  constitute  the  guiding  principles 
of  our  political  life,  viz.,  democracy,  national  sovereignty,  the 


THE  CHAMBER  OF  LABOUR  83 

forming  of  the  popular  will,  division  of  powers,  belong  to  an 
epoch  in  which  the  economic  activity  of  the  state  was  com- 
batted  with  passion.  When  it  has  created  its  political  system 
liberalism  remains  content  with  forms  that  answer  only  to 
purely  political  exigences. 

But  to-day  ideas  on  the  rôle  of  the  state  are  changing.  The 
state  in  the  last  few  decades  has  little  by  little  ceased  to  limit 
its  activity  to  the  rôle  of  "watcher  of  the  night,"  which  liberal- 
ism assigned  to  it;  and  more  and  more  the  organs  of  the  state 
have  been  forced  to  exercise  an  influence  on  public  economy. 
Modern  parliamentarism  is  insufficient  to  permit  the  state 
to  fill  its  new  duties.  For  the  political  chambers  are  divided 
in  parties  that  group  themselves  according  to  changeable 
ideological  conceptions,  based  on  the  idea  of  "what  should  be," 
the  idea  that  dominates  the  parties.  But  in  taking  a  position 
in  accordance  with  such  articles  of  faith  and  political  axioms, 
one  does  not  acquire  the  necessary  technical  knowledge  to 
gauge  and  judge  economic  questions.  In  this  matter  there 
is  only  one  method  of  learning,  that  is  to  study  the  facts  of 
economic  life.  What  follows  from  this  is  self-evident.  We 
must,  if  not  actually  suppress  the  political  parliament,  at  least 
put  beside  it  special  organs  charged  with  fulfilling  the  eco- 
nomic duties  of  the  state.  (See  August  Mliller,  Socialisierung 
oder  Socialismus?  Berlin,  1919.) 

And  these  organs  can  be  nothing  but  Councils,  Workers 
Councils,  Councils  of  Producers. 

Let  us  not  cry  immediately,  Bolshevism!  It  is  true  that 
the  system  of  Workers  Councils  was  born  in  Russia.  First 
appearing  under  the  Revolution  of  1905,  we  see  them  reappear 
in  1917,  but  it  was  not  the  Bolsheviks  who  brought  them  into 
being.  The  Soviets  were  born  because  in  prc-revolutionary 
Russia  the  law  did  not  tolerate  unions  of  workers.  As  a  con- 
sequence the  only  form  that  an  organization  could  take  to 
combat  the  tyranny  of  the  Czars  was  to  nominate  in  every 
factory,  shop,  etc.,  men  who  could  be  trusted.    In  1917,  Rus- 


84  THE  GERMAN  CONSTITUTION 

sian  Workers  Councils  formed  the  strongest  support  of  the 
democracy  ;  they  were  the  firmest  adherents  of  the  government 
formed  by  Kerensky.  But  when  the  Bolsheviks  seized  power 
they  crushed  the  democratic  Soviets  in  the  sense  that  they 
would  not  any  longer  permit  them  to  elect  their  members  to 
oflBce,  and  they,  the  Bolsheviks,  nominated  men  to  represent 
these  unions.  In  this  fashion  they  erected  their  dictator- 
ship, a  dictatorship  of  a  small  group,  with  the  slogan  of, 
"All  power  to  the  Workers  Councils!"  But  the  advent  of 
Workers  Councils  has  nothing  in  common  with  Bolshevism.^ 

To  political  representation  one  must  join  economic  repre- 
sentation, constituted  essentially  by  the  Councils.  Workers 
Councils,  somewhat  like  those  which  Daumig  would  organize, 
are  retained  ;  to  them  should  be  assigned  the  representation  of 
workers'  rights,  which  have  hitherto  been  defended  by  the 
unions. 

But  by  their  side  should  be  created  Councils  of  Production 
(Produktionsrate)  charged,  as  their  name  indicates,  with 
supervision  of  production.  There  will  be  organized  in  each 
locality  and  for  each  branch  of  economic  activity  a  Council 
of  Production.  The  enterprises  of  the  locality  will  each  be 
represented  by  an  equal  number  of  delegates  of  the  employers 
and  delegates  of  employés,  for  the  principle  of  parity  between 
employers  and  employés  is  absolute.  Above  the  Councils  of 
Productions  of  the  communes  there  will  be  superimposed  for 
each  branch  Councils  of  Groups,  Councils  of  the  Province, 
etc.,  culminating  in  Central  Council  of  Production  (Zentral- 
produktionsrat) .  There  is  thus  for  the  whole  territory  of  the 
Reich  a  Central  Council  of  Metallurgical  Production,  a  Cen- 
tral Council  of  Breweries,  a  Central  Council  of  Chemical 
Production,  etc. 

There  is  in  addition  at  each  stage  of  the  above  structure 
a   corresponding  economic   council   or  Chamber   of  Labour, 

*  See   Julius   Kaliski,   Der  Kern   des   Rdtegedanken,   in    Welt-Echo, 
(June,  1919. 


THE  CHAMBER  OF  LABOUR  85 

formed  by  a  meeting  of  the  delegates  of  the  Councils  of  Pro- 
duction of  that  stage. 

The  union  of  the  delegates  of  the  Councils  of  Production  of 
each  stage  constitutes  a  Chamber  of  Labour,  that  is  to  say, 
by  the  side  of  the  political  assembly  of  the  commune,  of  the 
district,  of  the  province,  as  well  as  by  the  side  of  the  National 
Assembly,  there  is  room  for  a  communal  Chamber  of  Labour, 
a  Chamber  of  Labour  of  the  district,  a  Chamber  of  Labour  of 
the  Province,  and  a  National  Chamber  of  Labour,  where  all 
the  economic  interests  of  the  commune,  the  district,  the  prov- 
ince, and  of  the  Reich,  are  represented.  By  means  of  a 
Chamber  of  Commerce,  the  producers,  as  producers,  partici- 
pate in  political  life.  It  is  an  economic  parliament  by  the 
side  of  a  political  parliament.  Whether  in  the  commune,  the 
province,  or  the  Reich,  no  assembly  elected  according  to 
merely  habitual  democratic  principles  (Volkskammer)  can 
of  itself  deliver  verdicts  or  decisions  of  principle.  An  ordi- 
nance of  a  communal  assembly  would  have  to  be  submitted 
to  the  approval  of  the  corresponding  Chamber  of  Labour  just 
as  a  law  passed  by  the  National  Assembly  would  have  to 
be  ratified  by  the  National  Chamber  of  Labour,  no  matter 
what  its  subject  matter.  The  Chamber  of  Labour  thus  plays 
the  rôle  of  a  second  chamber  and  its  veto  cannot  be  broken 
unless  for  three  years  in  succession  the  popular  chambers  vote 
the  same  provisions  in  the  same  terms  in  regard  to  the  matter 
in  conflict.  The  Chamber  of  Labour  and  the  popular  chamber 
have  equally  the  right  to  invoke  a  referendum.  Finally,  it 
belongs  in  principle  to  the  Chamber  of  Labour  to  be  the  first 
to  examine  all  projects  of  an  economic  character;  and  it  can, 
when  it  sees  fit,  take  the  initiative  in  proposing  a  law. 

There  are  between  this  programme  and  that  of  the  Inde- 
pendents profound  differences.  This  programme  gives  the 
employers  a  place;  the  proletariat  is  not  all-powerful;  and  if  it 
gives  to  the  organs  representing  the  workers  part  of  the  public 
power,  it  does  not  thereby  completely  abandon  the  eviyloyers. 


86  THE  GERMAN  CONSTITUTION 

Neither  dictation  by  the  proletariat,  therefore,  nor  dicta- 
tion by  the  Councils;  but  a  political  parliament  and  another 
chamber  in  which  employers  are  allowed  to  keep  the  right 
to  existence,  collaborating  by  the  same  title  and  to  an  equal 
measure  with  the  workers  in  the  direction  of  public  affairs. 

From  the  purely  democratic  point  of  view  the  most  serious 
objections  can  be  made  to  this  system  and  these  were  amply 
expressed. 

In  the  first  place,  said  the  democrats,  these  Chambers  of 
Commerce  cannot  be  made  up  of  men  who  have  the  sufficient 
knowledge  and  experience  with  economic  questions  except  by 
selecting  them  from  among  the  employers,  employés  and  the 
workers  in  the  different  branches  of  any  given  industry.  But 
these  men  are  personally  most  strongly  interested  in  the  prob- 
lems they  are  supposed  to  solve.  The  danger  is  great,  there- 
fore, that  they  would  decide  not  according  to  considerations  of 
general  interest  but  to  considerations  of  the  special  interests 
of  their  particular  industry  or  their  own  commerce.  The 
decisions  of  a  Council  composed  of  representatives  of  different 
enterprises  will  be  dictated  by  the  delegates  of  the  most 
strongly  represented  enterprises;  and  if  the  interests  of  all 
the  vocations  that  have  voice  in  the  Councils  can  agree  on 
something  at  the  expense  of  the  interests  not  there  represented, 
one  can  be  certain  that  this  solution  will  be  chosen.  The  proof 
of  this  is  already  here;  councils  of  producers  grow  always  at 
the  expense  of  the  consumers. 

The  champions  of  the  Chamber  of  Labour,  continue  the 
democrats,  are  guilty  of  a  fundamental  error.  They  believe 
that  in  economic  questions  there  are  only  such  problems  as 
can  be  studied  by  the  technicians,  and  that  these  can  give 
such  problems  the  only  and  obvious  solutions.  Actually, 
however,  even  in  purely  economic  questions,  we  ask  always  not 
what  is,  but  what  should  be,  what  we  want  of  them  and  what 
we  can  effect.    A  technical  knowledge  of  circumstances,  of 


THE  CHAMBER  OF  LABOUR  87 

causes,  and  consequences  is  naturally  necessary  for  a  serious 
decision.  But,  even  after  the  most  scientific  examination,  one 
arrives  almost  always,  and  above  all  in  important  questions, 
at  diverse  conclusions,  only  because  different  aims  have  been 
followed.  These  conclusions  are  always  dictated  by  political 
conceptions.  Technicians  can  decide  the  best  system  for 
cleaning  the  streets;  though  even  here  it  may  be  a  political 
question  to  know  if  such  a  system,  which  is  the  best  but  also 
the  most  costly,  can  or  should  be  employed.  But  when  it 
comes  to  questions  of  Sunday  rest,  if  woman  labour  should 
be  countenanced,  if  and  how  the  land  should  be  distributed, 
how  the  relations  becween  capital  and  labour  should  be  or- 
ganized in  the  great  modem  enterprises,  and  perhaps  above 
all,  who  should  pay  the  taxes — all  these  questions  and  an 
infinity  of  others  raise  up  problems  not  of  knowledge  but  of 
will.  They  are  the  questions  in  which  the  concern  is  not  with 
economy  but  with  the  situation  of  man,  his  rights,  his  liberty, 
and  his  dignity  within  the  economy.  It  is  a  question  of  the 
power  of  deciding  for  the  collectivity  on  a  subject  of  collective 
interests.  It  is  not  for  the  technician  to  decide,  but  for  the 
man  political. 

A  last  and  decisive  objection,  conclude  the  democrats, 
against  the  system  of  a  vocational  parliament  is  that  it  re- 
places or  annihilâtes  the  democratic  Chamber  elected  by  the 
equal  suffrage  of  all,  that  is  to  say,  by  democracy  itself,  and 
substitutes  for  it  a  professional  chamber  elected  by  a  plural 
vote  of  privileged  persons.  Let  the  proposal  be  remembered 
which  the  Prussian  conservatives  submitted  two  months  before 
the  Revolution  of  1918  to  effect,  as  they  claimed,  the  equality 
of  the  right  to  suffrage.  Each  elector  was  to  have  one  vote 
within  his  professional  vocational  group;  but  the  representa- 
tion contemplated  by  this  proposition  was  that  the  group  of 
farmers  were  to  have  one  seat  for  every  12,295  electors, 
whereas  their  labourers  would  not  get  more  than  one  scat  for 
every  110,530,  a  landed  proprietor  having  electoral  power  ten 


88  THE  GERMAN  CONSTITUTION 

times  as  strong  as  that  of  an  agricultural  labourer,  six  times 
as  strong  as  that  of  a  factory  worker  and  one-and-a-half  times 
as  strong  as  that  of  a  civil  servant.  It  is  true  that  the  division 
of  mandates  in  a  Chamber  of  Labour  would  not  result  in  as 
anti-democratic  consequences  as  these;  but  the  project  of  this 
chamber  is  based  on  the  essential  principle  of  parity  between 
employers  and  workers;  the  two  are  supposed  to  be  rigorously 
equal  in  numbers.  That  would  be  self-evident  and  under- 
standable fully  if  the  two  groups  had  to  settle  questions  in 
which  their  reciprocal  interests  were  opposed,  or  if  it  were 
a  question  purely  technical,  where  the  number  of  delegates 
does  not  enter  into  consideration.  But  it  is  absolutely  impos- 
sible to  admit  that  an  assembly  thus  constituted  should  take 
decisions  or  vote  resolutions;  for,  a  numerically  equal  repre- 
sentation both  of  employers  and  employés  would  correspond 
obviously  to  a  proportion  of  electors  much  greater  for  one 
ckbss  than  for  the  other.  In  any  industry,  for  example,  an 
employer  represents  considerably  fewer  electors  than  a  worker, 
and  to  give  his  voice  in  the  direction  of  public  affairs  an  influ- 
ence equal  to  that  of  a  worker,  would  be,  from  the  point  of 
view  of  democracy,  an  absurdity.  One  thing  or  the  other. 
Either  the  seats  in  the  Vocational  Parliament  are  apportioned 
among  the  professions  according  to  the  number  of  electors  in 
each,  the  representatives  being  elected  in  each  vocation  by 
the  equal  suffrage  of  all  without  distinction  between  employer 
and  employé — in  which  case  there  would  result  a  duplication 
of  the  political  parliament  of  which  the  least  one  can  say  is 
that  there  is  no  apparent  utility  in  it.  Or,  the  number  of  seats 
attributed  to  each  profession  must  be  measured  by  the 
economic  or  social  importance  of  that  profession,  basing 
representation  in  each  profession  on  the  principle  of  parity — 
in  which  case  there  would  result  a  parliament  of  the  privileged, 
condemned  by  the  democratic  ideal.  An  assembly  thus  com- 
posed could  very  well  draw  up  reports  and  give  advice  on 
questions  in  which  it  possesses  special  competence.     But  it 


THE  CHAMBER  OF  LABOUR  89 

cannot  be  a  parliament  having  rights  equal  to  those  of  a 
political  parliament. 

Such  are  the  objections  put  forward  by  democrats  against 
the  institution  of  a  Chamber  of  Labour,  and  their  force  cannot 
be  denied.  But  the  champions  of  an  economic  parliament 
reply  with  vigour. 

These  objections,  say  they,  all  take  the  point  of  view  of 
formal  democracy,  that  is  to  say,  the  point  of  view  that  con- 
siders only  the  external  forms  of  democracy,  which  contents 
itself  with  a  purely  theoretical  equality  of  right  and  equality 
between  citizens  corresponding  not  at  all  to  the  facts  of  real- 
ity, which  reduce  this  equality  to  nothing.  To  this  form  of 
democracy,  to-day  condemned  by  reality,  there  must  be  op- 
posed real  democracy,  in  which  one  takes  into  account  the 
special  rôle  which  certain  elements  in  the  life  of  a  nation  play. 
Formal  democracy  has  been  fully  realized  by  giving  all  men 
and  women  the  right  to  vote.  That  is  not  enough.  In  a 
modern  democracy  public  economy  must  be  given  its  proper 
place,  which  is  in  the  forefront.  Producers,  as  such,  must 
play  the  preponderant  rôle  in  the  state,  for  the  other  members 
of  the  community  live  only  as  parasites  on  their  labour,  and 
the  state  does  not  exist  except  by  the  labor  of  the  producers. 
No  decision  can  be  taken  in  a  state  if  it  is  not  accepted  by  the 
producers;  the  latter  must  be  the  touchstone  of  all  decisions. 

It  is  not  because  of  their  technical  competence  that  produc- 
ers are  proposed  as  the  constituents  of  a  special  chamber. 
It  is  because  they  judge  things  from  the  point  of  view  of 
production,  which  in  a  modern  democracy  should  count  more 
than  any  other.  It  is  not  a  question  of  abolishing  the  political 
parliament,  but  of  placing  in  juxtaposition  to  it  an  economic 
parliament  through  which  the  voice  of  the  producers  can  be 
heard  and  by  which  the  ideology  of  the  politicians  can  be 
corrected  by  the  realism  of  men  of  affairs. 

No  division  of  competence  between  the  two  parliaments 


90  THE  GERMAN  CONSTITUTION 

in  such  a  way  that  only  social  and  economic  questions  shall 
be  submitted'to  the  Chamber  of  Labour  can  be  admitted.  This 
distinction  between  political  affairs  and  economic  affairs  is  a 
pure  impossibility,  for  economy,  politics  and  general  culture 
form  a  unity  which  must  be  respected.  It  is  on  production, 
on  "creation"  that  the  existence  of  the  people  and  all  its 
material  and  intellectual  life  rests.  The  two  parliaments 
therefore  should  have  equal  power  to  study  these  questions. 
They  must  also  have  equal  rights.  To  give  the  economic 
chamber  only  the  right  to  draw  up  reports  and  give  advice, 
and  even  to  oppose  its  veto  only,  would  be  entirely  insufiBcient 
and  would  not  correspond  to  the  primary  rôle  which  the 
producers  play  in  the  life  of  a  nation. 

It  is  superfluous,  continue  the  partisans  of  a  Vocational 
Parliament,  to  present  arguments  of  which  history  constantly 
furnishes  corroboration.  In  the  countries  which  practise  the 
system  of  two  chambers,  one  of  the  two  chambers  takes  on 
always  a  greater  importance  than  the  other  and  plays  the 
preponderant  rôle.  It  is  the  one  which  translates  best  the 
will  of  the  nation  and  best  satisfies  its  needs.  The  other 
chamber  may  be  able  to  resist  for  some  time  but  in  the  end  it 
is  always  forced  to  surrender.  Up  to  now  this  preponderant 
rôle  has  been  held  by  the  lower  houses,  which  being  the  prod- 
uct of  universal  suffrage,  are  always  nearer  the  people,  have 
more  of  their  confidence  and  reflect  more  exactly  their  aspi- 
rations. Let  us  create  now  by  the  side  of  the  former  lower 
chamber,  a  Chamber  of  Labour  and  let  us  leave  to  it  the  care 
of  determining  its  own  future.  It  will  either  become  a  parlia- 
ment of  the  privileged,  making  decisions  that  will  not  corre- 
spond to  the  true  needs  of  the  nation;  in  which  case  it  will 
be  promptly  annihilated  by  the  more  popular  chamber.  Or, 
on  the  other  hand,  it  will  show  itself  to  be  the  more  practical 
and  the  more  useful  chamber  to  the  people.  In  the  inevitable 
conflicts  that  will  arise  between  the  two  chambers,  the  eco- 
nomic chamber  will  have  behind  it  the  support  of  the  people. 


POLITICAL  ACTIVITY  OF  THE  UNIONS     91 

In  case  of  referendum  it  will  be  in  favour  of  the  Chamber  of 
Labour  that  the  national  sovereignty  will  decide;  in  which 
case  the  traditional  rôle  of  a  lower  house  will  pass  into  the 
hands  of  a  Chamber  of  Labour.  The  proponents  of  the  Voca- 
tional Parliament  are  convinced  that  it  will  be  this  last 
alternative  that  will  be  realized. 

The  German  Constituent  Assembly  has  followed  their  sug- 
gestion only  to  a  very  slight  measure;  sufficiently  perhaps  to 
attempt  the  experiment  recommended  by  the  advocates  of  the 
Vocational  Parliament.  The  Assembly  has  created  an  Eco- 
nomic Council,  which  will  be  judged  by  its  work,  although 
it  is  deprived,  according  to  the  Constitution,  of  any  real  politi- 
cal authority.  It  is  sufficient  for  the  moment  to  say  that  in 
principle  it  is  the  classic  point  of  view  of  formal  democracy 
that  guides  it. 

4. — THE   POLITICAL   ACTIVITY   OF   THE  UNIONS. 

Meanwhile,  however,  several  things  occurred  that  seemed 
to  support  the  arguments  of  the  partisans  of  a  Chamber  of 
Labour,  when  they  claim  that  the  natural  evolution  of  events 
must  lead  shortly  to  the  advent  of  this  chamber. 

We  know  that  on  March  13,  1920,  counter-revolutionary 
troops  led  by  the  Infantry  General  von  Llittwitz  seized  Berlin, 
that  the  regular  government  abandoned  the  capital  and  that 
the  Director-General  of  Agriculture,  Kapp,  was  proclaimed 
at  the  same  time  Chancellor  of  the  Empire  and  Premier  of 
Prussia.  It  was  a  coup  de  main  of  officers  and  former  reac- 
tionary functionaries,  all  of  whose  acts  aimed  at  the  re- 
establishment  of  the  old  regime.  On  the  14th  the  unions  of 
workers  and  clerks  sent  an  ultimatum  to  the  new  masters  of 
Berlin  demanding  that  they  immediately  withdraw.  As  this 
ulitimatum  was  not  obeyed,  a  general  strike  was  proclaimed 
on  March  15. 

The  counter-revolutionary  government  lasted  four  days; 
then,  conquered  by  the  general  strike,  it  disappeared. 


92  THE  GERMAN  CONSTITUTION 

But  before  giving  the  workers  and  employés  the  order  to 
return  to  work  the  chiefs  of  the  unions  wanted  to  obtain 
guarantees  against  the  return  of  a  new  coup  d'état.  They 
called  therefore  on  March  18  the  representatives  of  the  parties 
of  the  majority  to  a  conference,  where  they  presented  to  them 
the  following  new  ultimatum.  These  representatives  were  to 
accept  in  the  name  of  their  groups — which  would  therefore 
be  bound — the  claims  which  would  be  submitted  to  them; 
otherwise  the  general  strike  would  be  continued  in  an  aggra- 
vated form.  The  unions  would  not  hesitate,  if  necessary,  to 
prevent  the  return  to  Berlin  of  the  Government  and  the 
National  Assembly.  They  would  even  accept  the  responsi- 
bility of  a  civil  war.  The  representatives  of  the  Democrats 
and  of  the  Centre  refused  to  pledge  their  parties.  They 
promised  only  to  do  what  they  could  to  get  them  to  accept 
the  claims  of  the  unions. 

As  for  the  claims  themselves,  they  were  presented  by  the 
union  leaders,  and,  after  a  long  discussion  and  some  modifi- 
cations, they  were  accepted  by  the  representatives  of  the 
political  parties.  These  claims  formed  the  celebrated  agree- 
ment known  in  Germany  as  the  "Eight  Points."  They  gave 
particularly  to  the  unions  the  right  to  exercise  a  veritable 
veto  over  the  nomination  of  Ministers  and  the  formation  of 
the  Ministry.^ 

*This  is  the  exact  text:  "1.  For  the  immediate  formation  of  the 
cabinets  in  the  Empire  and  in  Prussia,  the  questions  of  individual  ap- 
pointments will  be  decided  by  the  political  parties  in  agreement  with 
the  organizations  of  workers,  salaried  employés  and  civil  servants  tak- 
ing part  in  the  general  strike,  and  a  decisive  influence  will  be  accorded 
to  these  organizations  in  the  new  policies  of  economic  and  social  legis- 
lation, all  with  the  view  of  safeguarding  the  rights  of  popular  repre- 
sentation. 2.  Immediate  disarmament  and  punishment  of  all  those 
guilty  of  participating  in  the  pronunciamento  or  the  overthrow  of  the 
constitutional  government,  as  well  as  of  all  civil  servants  who  placed 
themselves  at  the  disposal  of  the  illegal  governments.  3.  All  public 
and  industrial  administrations  must  be  radically  purged  of  counter- 
revolutionary personalities,  in  particular  of  those  who  participate  in 
the  management,  and  these  personalities  must  be  replaced  by  trusted 
elements.  Re-employment  of  all  the  representatives  of  organizations 
in  public  services  who  were  made  the  victims  of  disciplinary  measures. 


POLITICAL  ACTIVITY  OF  THE  UNIONS     93 

This  agreement  concluded,  the  regular  government  came 
back  to  Berlin.  But  then  came  its  turn  to  negotiate  with 
the  trade  unions  and  to  attempt  to  satisfy  their  new  claims.^ 
These  new  engagements  secured,  the  union  leaders  ordered 
the  end  of  the  general  strike  and  the  resumption  of  work. 

Meanwhile  in  accordance  with  the  "Eight  Points"  the  cabi- 
net of  Bauer  was  formed.  The  crisis  seemed  ended  on  March 
24  by  the  simple  replacement  of  some  ministers;  but  the 
unions  raised  diflSculties  over  the  new  composition  of  the 
cabinet.  They  no  longer  wanted  as  Minister  of  Finance, 
Kuno,  director-general  of  the  Hamburg- American  Line;  and 
demanded  the  resignations  of  two  former  ministers,  Schlicke 
and  Schiffer,  whom  they  accused  of  having  treated  with  Kapp 
and  Liittwitz.  After  long  negotiations,  the  unions  withdrew 
their  opposition  to  the  retention  of  Schlicke  in  the  Ministry, 

4.  The  eariiest  possible  realization  of  administrative  reform  on  a  demo- 
cratic basis,  with  the  co-operation  of  the  economic  organizations  of 
wage-workers,  salaried  employés  and  civil  servants.  5.  The  immediate 
execution  of  all  existing  laws  and  the  enactment  of  new  social  laws 
that  will  accord  to  wage-workers,  salaried  employes  and  civil  servants 
complete  social  and  economic  equality;  and  the  immediate  enactment 
of  liberal  legislation  in  behalf  of  civil  servants.  6.  The  immediate 
socialization  of  the  branches  of  industry  ripe  for  socialization  on  the 
basis  of  the  decisions  of  the  Committee  on  Socialization,  in  which 
representatives  of  vocational  organizations  shall  take  part.  The  im- 
mediate convocation  of  the  Committee  on  Socialization.  The  transfer 
to  the  Empire  of  the  coal  and  potash  corporations.  7.  More  effective 
appropriation  and,  if  need  be,  the  expropriation  of  available  necessities 
of  life;  more  vigorous  war  against  usurers  and  profiteers  in  the  country 
districts  and  in  the  cities;  guarantees  that  obligations  of  deliveries  will 
be  executed,  insured  by  the  organization  of  societies  for  delivery  of 
goods,  and  the  establishment  of  definite  fines  and  pimishments  for  all 
violations  of  these  obligations  due  to  ill-will.  8.  The  dissolution  of  all 
counter-revolutionary  military  organizations  that  did  not  remain  faith- 
ful to  the  Constitution,  and  their  replacement  with  organizations 
recruited  from  the  masses  of  tried  republican  population,  in  particular 
workers,  salaried  employés  and  organized  civil  servants,  without  favour 
to  any  class  whatever.  In  this  reorganization  the  rights  of  all  troops 
and  organizations  that  have  remained  faithful  shall  remain  intact." 

*  Retreat  of  the  Berlin  troops  to  the  line  of  the  Spree;  the  lifting 
of  the  state  of  siege;  no  attack  on  armed  workers,  particularly  in  the 
Ruhr;  negotiations  with  labour  organizations  with  the  view  of  recruiting 
of  workers  in  the  troops  of  Prussian  safety  police. 


94  THE  GERMAN  CONSTITUTION 

but  kept  up  their  objection  against  Kuno  and  Schiffer.  These 
two,  therefore,  gave  up  their  attempt  to  enter  or  to  remain 
in  the  ministry;  but  the  Democrats  took  the  part  of  Schiffer 
and  the  whole  cabinet  was  compelled  to  resign.  It  was  re- 
placed with  the  consent  of  the  unions  by  the  ministry  organ- 
ized by  Hermann  Millier. 

Meanwhile  work  far  from  being  resumed,  a  new  kind  of 
civil  war  developed  in  the  Ruhr.  On  the  one  hand  armed 
workers,  who  had  first  organized  to  fight  against  Kapp  and 
Liittwitz,  remained  united  and  under  arms  for  fear  that  even 
after  the  conclusion  of  the  coup  d'état  of  Kapp  and  Liittwitz, 
there  would  remain  under  another  mantle  a  disguised  military 
dictatorship.  On  the  other  hand,  troops  of  the  Reiehswehr, 
some  of  whom  were  accused  by  the  workers  of  having  the 
support  of  the  counter-revolutionary  government  and  whose 
powers  seemed  to  be  unlimited,  alarmed  the  labouring  popula- 
tion. On  March  21,  there  was  held  at  Bielefeld  a  conference 
in  which  met  members  of  the  constitutional  government,  dele- 
gates of  the  parties  of  the  majoritj',  and  representatives  of  the 
Independents  and  of  Labour  organizations.  An  "armistice" 
was  at  first  concluded,  then  an  accord  was  achieved — known 
in  Germany  as  the  "Bielefeld  Agreement" — in  which  to  the 
"Eight  Points"  of  Berlin  was  added  a  "Ninth."  This  would, 
at  least  it  was  so  hoped,  bring  about  the  dissolution  of  the 
revolutionary  organizations  and  the  re-establishment  of  the 
regular  administrative  authorities.^ 

In  spite  of  this  agreement,  however,  fighting  continued  and 
on  April  6  the  unions,  to  whom  the  two  socialist  parties 
rallied,  addressed  another  ultimatum  to  the  government.    But 

*The  principal   of  the  new  "Nine   Points"  are:    1.  The  troops   of 

Reiehswehr  remain  in  their  position  and  must  not  advance  on  the  indus- 
trial area  except  with  the  express  authorization  of  the  Cabinet.  2.  The 
red  army  dissolves  and  gives  up  its  arms.  3.  Adequate  police  is  assured 
by  the  constitutional  authorities,  supported  by  ''committees  on  public 
order"  and  of  "local  armies"  compo.sed  of  workers,  salaried  employés 
and  civil  servants  of  all  parties.  4.  The  "committees  of  action"  and 
the  "executive  committees"  are  dissolved. 


POLITICAL  ACTIVITY  OF  THE  UNIONS     95 

it  was  precisely  the  moment  at  which  Franco-Belgian  troops 
occupied  German  cities  on  the  right  bank  of  the  Rhine  and 
attention  was  thereafter  diverted  entirely  to  foreign  politics. 

Such  are  the  facts.  The  parties  of  the  coalition  have  at- 
tempted to  justify  them  and  to  prove  that  the  imperative 
injunctions  addressed  by  the  unions  to  a  government  which 
had  to  yield  almost  at  every  point  did  not  constitute  a  viola- 
tion of  the  constitutional  principle  of  national  sovereignty. 
They  pointed  out  that  the  first  of  the  "Eight  Points"  recog- 
nizes expressly  the  rights  of  national  representation;  that  the 
decisive  influence  accorded  to  the  unions  in  matters  of  social 
and  economic  legislation  had  to  be  exercised  through  the  inter- 
mediacy  of  representatives  speaking  for  the  unions  in  the 
ministries  charged  with  the  preparation  of  law;  and  that  the 
last  word  belonged,  therefore,  always  to  the  popular  represen- 
tation; that,  although  it  is  true  that  the  unions  protested 
against  the  nomination  or  the  retention  of  Kuno  and  Schiffer 
in  the  ministry,  yet  in  reality  the  cabinet  of  Hermann  Millier 
had  been  constituted  according  to  the  customary  forms  after 
an  accord  with  the  parties  of  the  majority. 

Other  members  of  the  governmental  parties,  on  the  contrary, 
pleaded  extenuating  circumstances.  The  Minister  of  Post 
and  Telegraph,  Giesbert,  after  having  participated  in  the 
"Bielefeld  Agreement,"  declared  that  he  did  not  want  to 
examine  whether  this  accord  was  contrary  to  or  in  conformity 
with  the  Constitution;  for,  "extraordinary  epochs  and  extraor- 
dinary circumstances  compel  extraordinary  measures.  The 
conviction  of  those  who  participated  in  the  conference  (of 
Bielefeld)  is  that  this  agreement  was  the  only  possibility  of 
avoiding  chaos  and  devastation  in  the  territory  of  the  Ruhr."  ^ 

But  the  opposition  parties  unanimously  insisted  that  the 
Government's  attitude  was  really  contrary  to  the  principle  of 
national  sovereignty.  In  a  democracy  only  the  parliament 
elected  by  the  whole  people  should  decide;  only  it  could  ap- 

^  Deutsche  Allgemeine  Zeitung,  March  28,  1920. 


96  THE  GERMAN  CONSTITUTION 

point  the  Government  and  it  was  responsible  for  its  decisions 
and  nominations  only  to  the  people  of  the  nation  themselves. 
As  for  vocational  associations,  their  function  is  to  defend  only 
the  corporate  interests  of  their  members  and  they  had  no  right 
to  encroach  on  the  political  domain.  In  the  events  of  March- 
April,  1920,  the  unions,  leaving  their  vocational  domain, 
revealed  themselves  the  real  masters  of  Parliament  and  of  the 
Cabinet,  which  had  to  submit  to  their  injunctions.  The  Inde- 
pendents congratulated  themselves  and  proclaimed  that  there- 
after the  Government  was  placed  under  a  certain  sur\'eillance 
of  the  organized  proletariat.  The  parties  of  the  Right  indig- 
nantly refused  to  acknowledge  a  "side  government"  (Neben- 
regierung)  over  the  regular  government.  "Henceforth,"  said 
one  of  the  opposition  journals,  "workingmen's  organizations 
can  say  that  their  orders  are  always  carried  out.  It  is  true 
that  the  Democrats  seem  troubled  by  the  state  of  affairs. 
But  what  difference  does  that  make?  There  are  only  three 
parties  that  govern  Germany — workingmen,  employés,  and 
civil  servants."  ^ 

These  statements  are  undoubtedly  exaggerations  in  two  re- 
spects. One  fact  meanwhile  must  be  noted  of  importance  here. 
While  the  government  was  discussing  wùth  the  unions  the 
formation  of  the  ministry  the  newspapers  printed  vehement 
protests  from  vocational  associations  and  from  other  labour 
unions  and  groups  of  clerks  and  civil  servants,  which  de- 
manded that  they,  too,  be  allowed  to  participate  in  the  nego- 
tiations. For  they  did  not  understand  why  the  labour  unions 
should  alone  have  the  privilege  of  participating,  for  example, 
in  the  choice  of  Ministers — and  it  is  impossible  from  the 
democratic  point  of  view  to  deny  the  force  of  their  position. 

Without  deducing  from  these  facts  any  premature  conclu- 
sions one  may  ask  if  the  supporters  of  an  Economic  Parlia- 
ment are  not  right  in  saying  that  formal  democracy  no  longer 
is  able  to  meet  the  actual  needs  of  the  people. 

^  Lokal  Anzeiger,  April  8,  evening. 


APPLICATIONS  97 

The  events  of  the  months,  March-April,  1920,  demon- 
strated, they  say,  the  complete  incapacity  of  political  powers 
to  surmount  any  difficulty  as  soon  as  it  becomes  in  the  least 
serious.  One  of  them  wrote,  "The  political  party  is  about  to 
become  a  superfluous  organization;  it  is  being  ousted  or  per- 
haps absorbed  by  the  vocational  association."  ^  A  new  epoch 
demands  new  political  forms.  It  is  true  that  it  is  inadmis- 
sable  for  a  certain  class  of  unions  to  arrogate  to  itself  the  right 
to  impose  its  wishes  on  a  government  of  the  whole  people. 
We  must  not  think,  on  the  other  hand,  that  in  the  future  the 
unions  would  renounce  the  use  of  means  which  have  hitherto 
proved  to  be  powerful.  There  is  only  one  remedy  open:  to 
associate  the  other  productive  parties  of  the  nation  with  the 
political  work  of  the  unions  ;  to  transform  this  present  irregu- 
lar and  irresponsible  political  work,  such  as  it  is  now,  into  a 
constitutional  collaboration  with  the  government  of  the  state. 
It  is  there  that  the  events  of  the  month  of  March  have  demon- 
strated the  necessity  of  changing  the  present  system.  These 
events  appear  thereby  one  of  the  steps  which  lead  from  a 
formal  democracy  to  a  real  democracy,  from  a  purely  political 
parliamentarism  of  the  past  to  a  politico-economic  parlia- 
mentarism of  the  future. 


SECTION  II 

APPLICATIONS 

The  democratic  principle  is  one  of  the  bases  on  which  the 
Constitution  of  August  11  is  constructed;  more  or  less  imme- 
diate applications  of  it  are  found  in  most  of  the  institutions 
provided  for  by  this  Constitution.  We  shall  confine  ourselves 
here  to  the  study  of  the  principal  and  most  direct  of  these 
applications. 

'■  Leosch,  Ervf'dnschte  Nachwirkungen,  in  Der  Tag,  No.  83. 


98  THE  GERMAN  CONSTITUTION 

1. — THE  REPUBLIC. 

The  normal  form  of  a  government  in  a  democracy  is  the 
republic.  It  is  logical  that  if  the  people  is  sovereign  and  if 
all  power  comes  from  the  people  the  chief  of  the  state, 
like  its  other  organs,  should  be  elected  by  the  people  and  hold 
his  authority  by  virtue  of  it.  It  is  true  that  there  may  be  and 
that  there  are  democratic  monarchies,  such  as,  for  example, 
England.  But  this  juxtaposition  of  monarchy  and  democ- 
racy, is,  from  the  point  of  view  of  theory,  difficult  to  justify 
and  in  practice  can  be  maintained  only  by  reducing  the  effec- 
tive power  of  the  monarch  to  almost  nothing.  Democratic 
Germany  therefore,  must  be  republican.  In  reality  the 
National  Assembly  arrived  at  a  republic  much  less  by  logical 
compulsion  than  through  actual  necessity;  like  the  French 
Assembly  of  1875,  it  adopted  the  republican  form  because  it 
was  difficult  for  it,  if  not  impossible,  to  do  otherwise.  It 
seems  that  the  great  modern  democracies  do  not  become  repub- 
lican until  monarchy  has  been  demonstrated  as  impossible. 
The  republic  is  at  the  outset  only  a  last  resort;  and  this  must 
be  realized  and  borne  in  mind. 

Before  the  Revolution  nothing  in  Germany  was  republican. 
Almost  totally  deprived  of  political  spirit  and  personal  judg- 
ment the  German  people  had  let  themselves  be  convinced  that 
it  was  only  in  the  hands  of  the  monarchy,  the  army,  and  the 
bureaucracy  that  the  affairs  of  the  nation  were  best  and  most 
safely  conducted;  and  they  naturally  came  to  think  that 
the  prosperity  in  Germany  in  economic  and  in  technical  mat- 
ters, as  well  as  its  development  in  social  matters,  was  unde- 
niable proof  of  the  excellence  of  the  monarchical  system.  No 
political  party  dreamed  of  incorporating  in  its  program  the 
establishment  of  a  republic.  Not  even  the  Social  Democrats 
themselves  really  believed  that  the  republican  form  was  a 
thing  which  the  time  had  come  to  demand.  They  even  held 
that  the  economic  and  social  interests  of  the  working  class 


APPLICATIONS  99 

could  be  more  solidly  assured  by  a  powerful  monarchy  than 
by  a  republic  and  a  democracy  of  "capitalists." 

After  the  Revolution  the  situation  changed  entirely.  The 
sudden  and  complete  bankruptcy  of  monarchy  demonstrated 
overnight,  with  all  the  convincing  force  of  fact,  that  this  mon- 
archy, in  spite  of  its  apparent  force,  was  incapable  of  fulfill- 
ing the  duties  whose  accomplishment  alone  could  justify  its 
existence.  The  powerful  monarchy  had  not  had  any  clear 
and  co-ordinated  foreign  policy;  it  had  turned  against  Ger- 
many all  the  active  forces  of  the  world;  it  had  shown  itself 
unable  to  utilize  to  its  full  limit  the  military  and  economic 
capacity  of  the  German  people  for  waging  a  desperate  war  to 
an  acceptable  conclusion;  it  had  not  been  able  to  realize 
indispensable  internal  reforms.  After  November  9,  one  can 
say  that  there  were  no  more  royalists  in  Germany  ;  monarchy 
had  become  really  impossible  and  the  Reich  could  not  continue 
except  as  a  republic.^ 

Later  the  monarchist  flag  reappeared,  rallying  about  it  all 
the  deceptions  and  discontents.  During  the  discussion  of 
the  draft  of  the  Constitution  the  German  Nationalists, 
among  them  the  formsr  Minister  Delbriick,  declared  loudly 
that  they  preferred  a  constitutional,  parliamentary  monarchy 
to  a  republican  government;  but  the  other  parties  did  not 
follow  them.  In  Article  1  of  the  Constitution  it  was  decided 
that  "The  German  Reich  is  a  Republic";  and  in  Article  17 
that  "each  state  must  have  a  Republican  Constitution." 

As  a  symbol  of  this  change  in  the  form  of  government  the 
Constitution  changed  the  colours  of  the  German  flag;  abandon- 
ing the  black-white-red  of  the  old  régime  and  adopting  the 
colours,  black,  red  and  gold  because  of  their  historical  signifi- 
cance; because  these  colours  had  always  symbolized  in  the 
courts  of  the  nineteenth  century  the  tendency  toward  political 
liberty  and  towards  German  national  unity. 

However,  the  Constitution  docs  not  give  the  new  German 

*Preus8,  Deutschlands  republikanische  Reichsverfassung. 


100  THE  GERMAN  CONSTITUTION 

state  the  name  "Republic"  but  keeps  the  name  of  "Reich." 
The  Independents  protested  against  that;  they  insisted  on  the 
fact  that  "Reich"  will  be  always  translated  in  French  and 
in  English  as  "Empire"  and  that  this  word  will  always  signify 
to  foreign  powers  all  that  militarist  domination  implies,  the 
despotic  subordination  and  the  dangerous  pan-Germanism  that 
characterized  the  old  Empire.  But  Preuss,  followed  by  all  the 
other  parties,  observed  that  abroad  "Reich"  could  not  be 
translated  as  "Empire"  except  in  bad  faith,  for  Article  1 
specifies  that  Germany  is  a  republic  and  that  the  republican 
character  of  the  state  appears  clearly  in  even  the  most  casual 
reading  of  the  text  of  the  Constitution.  For  him  the  distinc- 
tive trait  of  the  Constitution  was  that  it  places  to  the  forefront 
German  unity.  "After  all,  our  historical  development  is 
precisely  in  the  words  'Reich'  and  'German  Reich'  with  which 
are  associated  the  efforts  of  the  German  people  towards  unity 
and  the  re-establishment  of  national  unity.  I  believe  that  to 
keep  the  word  'Reich'  is  entirely  compatible  with  the  marked 
emphasis  on  republican  character  with  which  the  whole  of 
the  Constitution  is  impregnated."  ^ 

2. — ^UNIVEESAL  SUFFRAGE,  THE  POLITICAL  PARTIES  AND 
THE  ELECTORAL  LAW. 

Democracy  being  the  government  of  the  state  by  the  will 
of  the  majority,  the  next  problem,  a  difiBcult  one,  is  how 
to  indicate  that  will. 

First  of  all,  does  such  a  will  exist?  Hegel  once  said, 
"The  people  is  that  part  of  the  state  that  knows  not  what  it 
wants."  It  seems  at  first  glance  that  that  is  true.  How  many 
men  there  are  who,  when  faced  by  a  political  problem,  seem 
completely  incapable  of  judging  and  making  a  decision.  In 
regard  to  questions  of  prime  importance  in  contemporary 
politics  the  great  mass  of  individuals,  no  matter  to  what  class 

'  Session  of  July  2.    (Heilfron,  op.  cit.,  vol  V,  pp.  2960-2961.) 


UNIVERSAL  SUFFRAGE  101 

they  belong,  remain  hesitant  and  uncertain.  There  is  in  the 
last  analysis  no  firm  and  conscious  will  in  the  many.  There 
are  unreflected  and  obscure  impulses  which  govern  men  in 
political  matters.  And  if  such  are  the  isolated  volitions  of 
individuals,  what  can  one  expect  of  the  sum  total  of  these 
volitions?  Is  it  possible  to  derive  from  the  sum  of  these 
negations  anything  positive  and  to  extract  from  these  fugitive 
volitions  anything  that  resembles  a  collective  will? 

The  individual  wills  are  not  only  too  feeble  and  too  little 
conscious;  they  are  also  too  dissimilar  and  contradictory  to 
permit  being  constructed  into  an  ensemble.  It  is  a  chaos  of 
infinitely  diversified  indications;  making  it  an  absurd  project 
to  try  by  means  of  an  election  to  secure  a  parliament  that  will 
constitute  a  faithful  mirror  of  these  chaotic  indications. 

Yet  popular  will  should  not  be,  cannot  be,  a  myth,  for  in 
every  chapter  of  modern  history  it  is  encountered  and  its 
power  felt.  At  the  birth  of  constitutional  states  and  at  every 
epoch  of  their  increase  in  strength  its  action  is  noted;  whether 
in  the  victorious  thrust  of  the  principle  of  nationalities  or  in 
the  development  of  the  socialist  idea.  All  these  movements — 
and  how  many  others! — have  denoted  that  there  is  in  the 
great  masses  an  active  and  powerful  will.  In  war,  too,  is  it 
not  the  popular  will  that  leads  masses  to  consent  to  sacrifices 
Buch  as  would  not  have  been  believed  possible?  There  is 
such  a  thing  as  popular  will,  and  no  arguments  given  against 
its  existence  are  valid. 

It  must  be  examined,  therefore,  in  concrete  fashion  how 
what  is  rightly  considered  as  the  popular  will  is  expressed  in 
practice  in  modern  political  democracies.  If  all  the  processes 
of  this  formation  are  reduced  to  their  essential  elements,  dis- 
carding all  complications  that  may  introduce  error,  there  is 
revealed  this:  the  fact  that  between  the  individual  and  the 
people  as  a  whole  there  interposes  itself  a  third  element,  the 
political  party.  What  matter  if  in  some  respects  one  may 
think  that,   even   under  the   most   favorable   circumstances, 


102  THE  GERMAN  CONSTITUTION 

it  is  only  a  necessary  evil?  The  political  party  is  a  political 
means  not  only  indispensable  but  fecund  and  perfectly  ra- 
tional. Its  essential  function  is  to  transform  isolated  volitions 
into  a  collective  will  of  the  ensemble.  Therein,  too,  the  appar- 
ent contradiction  between  the  fact  that  the  crowd  has  no 
conscious  will  and  the  postulate  of  a  popular  will  is  recon- 
ciled. The  tendencies  of  individuals,  chaotic  as  they  may  be, 
change  completely  in  nature  when  they  are  joined  to  equal 
or  similar  tendencies  of  many  other  individuals.  From  the 
contact  of  these  vague  and  troubled  impulses  there  springs 
forth  the  conscious  and  clear  collective  will.  Certain  impul- 
sive forces  particularly  powerful  disengage  from  others  and 
imite  with  adjacent  currents  to  create  and  to  strengthen  a 
movement  that  can  attract  the  masses.  It  is  only  when  chaos 
is  thus  organized  and  when  impulses  are  thus  transformed 
into  forces  that  these  forces  acquire  a  political  significance 
and  can  be  compared  and  confronted  in  a  parliament. 

Such  being  the  primary  function  of  the  political  party  in 
a  democracy,  positive  legislation  must  be  such  as  to  permit 
it  to  fulfil  this  function  in  order  that  the  powerful  popular 
will  shall  be  most  clearly  and  easily  clarified  and  formulated 
by  it.  We  must  examine  how  this  has  been  embodied  in 
German  law. 

In  conformity  with  the  democratic  principle  the  Constitu- 
tion in  Article  22  provides:  "The  delegates  are  elected  by 
imiversal,  equal,  direct  and  secret  suffrage  by  all  men  and 
women  over  twenty  years  of  age,  in  accordance  with  the  prin- 
ciples of  proportional  representation.  The  day  for  elections 
must  be  a  Sunday  or  a  public  hohday.  The  details  will  be 
regulated  by  the  national  election  law." 

This  law  is  dated  April  27,  1920,  and  was  itself  followed 
by  an  ordinance  on  May  1,  1920,  which  specifies  each  appli- 
cation. 


GENERAL  PRINCIPLES  103 

I. — GENERAL  PRINCIPLES. 

The  system  according  to  which  the  delegates  to  the  National 
Assembly  were  elected  has  not  given  complete  satisfaction. 

The  principal  objection  made  against  it  was  directed  above 
all  against  the  law  of  November  30,  which  permits  parties 
to  unite  their  lists  of  candidates,  a  privilege  from  which  the 
parties  that  lent  themselves  to  neither  alliance  nor  compro- 
mise naturally  suffered.  Such  lists  have  been  criticized  as 
corrupting  political  morality  and  obscuring  the  results  of 
elections. 

But  it  has  been  also  estimated  that  the  division  of  repre- 
sentation in  accordance  with  the  Hondt  system  permits  the 
stifling  of  small  groups  and  that  after  the  apportionment  of 
seats  in  the  different  districts  there  are  votes  which  secure  no 
representation  to  the  detriment  of  the  small  parties. 

It  is  found  also  that  the  division  of  the  territory  of  the 
Reich  into  electoral  districts  has  been  badly  done,  some  dis- 
tricts being  in  a  general  way  much  too  extensive.  There  are, 
as  a  rule,  an  average  of  eleven  members  per  district  in  the 
National  Assembly,  and  experience  has  shown  that  this  num- 
ber is  too  large  for  the  members  to  be  able  to  know  well 
the  needs  of  their  districts  and  to  maintain  close  contact  with 
their  electors. 

It  has  been  decided  to  abandon,  therefore,  the  system  of 
Hondt  and  to  adopt  an  automatic  system  which  was  inscribed 
in  Article  24  in  the  Constitution  of  Baden,  and  which  is  more 
customarily  known  as  the  Baden  System.  It  is  thus  defined 
in  the  above-mentioned  article:  "Each  party  or  group  of 
electors  is  allowed  one  member  for  every  ten  thousand  votes 
cast  for  its  list  of  candidates.  In  each  district  the  votes  re- 
maining unused  are  added  up  for  the  whole  country  and  are 
apportioned  representation  according  to  the  principle  do- 
scribed  above.  Every  fraction  of  more  than  7,500  votes  is 
permitted  a  seat." 


104  THE  GERMAN  CONSTITUTION 

The  originality  of  the  system  consists  in  this:  First,  the 
number  of  members,  instead  of  being  fixed  according  to  the 
number  of  the  population  or  of  the  electors,  depends  on  the 
number  of  those  actually  voting,  in  such  a  way  that  not  until 
after  the  elections  can  one  count  the  number  of  members  that 
will  make  up  the  assembly.  The  latter,  therefore,  will  be 
more  numerous  if  the  electors  are  more  numerous.  There  is 
also  a  superimposition  of  the  tickets.  The  votes  not  utilized 
in  the  tickets  of  the  first  degree  are  reassembled  on  a  list  of  the 
second  degree  where  a  new  division  of  seats  is  made. 

This  mechanism  represents  obvious  advantages.  It  insures 
to  each  party  exactly  as  many  members  as  it  should  receive 
according  to  the  number  of  votes  cast  for  it  throughout  the 
whole  state.  It  realizes  the  greatest  possible  use  of  remnants 
of  votes,  and  consequently  satisfies  as  completely  as  possible 
the  exigencies  of  proportional  representation.  All  attempts 
by  the  government  or  by  a  majority  at  a  cunning  and  dis- 
honest division  of  the  country  into  artificial  electoral  districts 
are  thus  eliminated.  In  addition  this  system  permits  the 
possibility  on  the  part,  of  parties  to  give  seats  to  candidates 
who  have  exceptional  parliamentary  experience  and  who  play 
political  rôles  of  the  first  order,  but  who  despise  mixing  in 
local  political  struggles,  such  as  may  be  considered  among  the 
principal  influences  in  the  lowering  of  the  personal  character 
of  parliament.  The  ticket  of  the  Reich  permits  each  elector  to 
vote  at  the  same  time  for  the  man  in  whom  the  locality  has 
confidence,  who  knows  the  needs  of  his  districts  and  of  his 
electors,  as  well  as  for  the  leaders  who  direct  his  party. 

The  system  of  Baden  can  be  in  turn  applied  in  different 
modes.  To  give  the  public  a  chance  to  discuss  these  modes 
and  to  pronounce  on  this  matter,  the  government  of  the  Reich 
in  Januarj',  1920,  published  three  advance  projects  of  electoral 
law,  each  project  defining  and  regulating  a  particular  modality. 

Project  A  introduced  the  Baden  system  in  its  purest  form. 
It  provided  for  electoral  districts  in  which  the  number  of 


GENERAL  PRINCIPLES  105 

voters  was  generally  sufficient  to  elect  six  members;  the  un- 
utilized votes  in  each  district  would  be  immediately  summed 
up  in  a  ticket  for  the  Reich,  where  representation  would  be 
apportioned  in  the  same  manner  as  within  the  district 

Project  B  provided  for  electoral  districts  of  four  members 
each.  But  between  the  district  tickets  and  the  ticket  for  the 
Reich  there  would  be  a  third:  several  adjoining  electoral  dis- 
tricts being  united  in  "a  group  of  districts,"  in  which  lists 
called  "tickets  of  the  groups  of  districts"  would  have  to  be 
presented.  The  unutilized  votes  in  the  electoral  districts 
would  be  first  added  up  within  the  "union  of  districts"  and 
credited  to  the  ticket  of  this  union.  The  ticket  for  the  Reich 
would  then  receive  only  the  unutilized  fractions  of  each  group. 

Project  C  provided  for  electoral  districts  of  the  same  extent 
and  for  groups  of  districts  of  the  same  nature  as  Project  B. 
But  parties  would  be  free  to  present  or  not  tickets  in  the 
groups  of  districts,  the  understanding  being,  that  if  they  de- 
cided to  present  for  election  a  list  of  candidates  in  each  group 
of  districts,  they  could  not  present  lists  within  the  districts 
of  the  group.  This  provision  was  designed  to  answer  the 
following  need.  Groups  of  electors,  not  numerous  enough  to 
obtain  in  the  first  instance  one  or  more  seats  in  this  or  that 
district,  could  unite  in  groups  of  the  same  party  for  adjoining 
districts  to  present  a  ticket  in  common  (a  ticket  of  the  group 
of  districts)  which  would  apply  for  the  whole  group  or  for 
only  some  of  the  districts  entering  into  this  group.  While  the 
big  parties,  to  avoid  the  inconveniences  of  cumbersome  tickets, 
would  present  in  general  a  list  of  candidates  by  districts,  the 
little  parties  would  be  able  to  present  but  one  ticket  for  sev- 
eral districts,  which  would  enable  them  to  secure  seats  they 
could  not  otherwise  win. 

The  project  of  the  electoral  law  which  was  presented  by 
the  Cabinet  to  the  Reichsrat  on  March  2,  1920,  adopted  the 
mechanism  of  project  C. 


106  THE  GERMAN  CONSTITUTION 

The  Cabinet  justified  its  choice  as  follows:  It  is  only  in 
small  districts  that  the  indispensable  contact  between  electors 
and  their  deputies  can  be  maintained  and,  that  long  lists  of 
candidates,  which  always  lead  to  unpleasant  surprises,  can  be 
avoided.  If  the  electoral  districts  are  reduced  to  no  more 
than  four  deputies  each,  as  project  C  would  have  it,  the  first 
candidate  on  each  list  would  have  in  general  the  best  chance 
of  being  elected  ;  which  would  in  most  cases  assure  representa- 
tion to  the  most  intelligent  electors  in  the  district.  The  criti- 
cism which  can  be  made  against  the  ticket  for  the  Reich 
that  a  certain  number  of  members  can  be  sent  to  Parliament 
elected  not  directly  by  the  people  but  by  the  executive  com- 
mittees of  the  parties,  is  reduced  to  a  minimum  in  project  C 
as  compared  to  project  A,  by  the  introduction  of  the  tickets 
for  the  groups  of  districts.  The  number  of  deputies  to  be 
elected  on  the  ticket  for  the  Reich  is  thereby  reduced  and  the 
influence  of  executive  committees  of  the  parties  is  diminished 
in  favour  of  the  influence  of  local  organizations. 

On  the  other  hand,  project  B  could  not  be  supported.  The 
establishment,  the  examination,  and  the  publication  of  each 
of  the  lists  of  candidates  for  each  of  the  three  degrees  to 
which  the  division  of  seats  would  be  made,  must  offer  seri- 
ous difficulties,  given  the  brief  time  to  which  would  be  reduced 
the  preparations  of  elections.  According  to  Article  63  of  the 
Constitution,  elections  must  be  held  at  the  latest  on  the  six- 
tieth day  after  the  expiration  of  the  legislature  or  the  dissolu- 
tion of  the  Reichstag.  Electoral  authorities  could  not,  except 
with  hasty  and  desperate  work,  assure  in  such  a  short  space 
of  time  the  preparation  of  elections  of  the  three  degrees.  In 
addition,  system  B  has  the  inconvenience  of  requiring  a 
considerable  number  of  candidates  before  it  is  possible  to 
foretell,  even  approximately,  how  many  candidates  of  each 
of  the  two  first  degrees  would  be  elected.  It  is  true,  however, 
that  it  had  the  advantage  of  reducing  to  a  minimum  the  num- 
ber of  candidates  elected  on  the  ticket  for  the  Reich. 


GENERAL  PRINCIPLES  107 

Finally,  project  C,  in  giving  to  groups  of  electors  the  choice 
of  either  presenting  district  tickets  or  joining  groups  of  neigh- 
bouring districts  in  presenting  a  common  ticket,  answered  best 
the  need  of  parties  to  dispose  their  forces  most  effectively 
within  the  different  districts.  It  permitted  them,  so  to  speak, 
to  group  their  districts  according  to  their  fancy,  following 
their  particular  needs. 

This  was  in  outline  the  system  which  the  Government  de- 
signed and  submitted  to  the  Reichsrat.  But  before  this  as- 
sembly finished  its  scrutiny  of  it  the  events  of  March,  1920, 
transpired,  completely  changing  the  political  situation  and 
rendering  general  elections  imperative  for  the  following  June. 
Instead  of  examining  thoroughly,  as  it  had  been  their  inten- 
tion, the  project  submitted  by  the  Government,  the  National 
Assembly,  in  considering  this  project  on  March  27,  was  com- 
pelled to  pass  to  a  vote  as  quickly  as  possible.  Neither  did 
the  Government  defend  its  project  with  any  particular  con- 
sistency. Minister  of  the  Interior  Koch  explained  that  the 
Government  adhered  above  all  to  the  principle  of  the  auto- 
matic system  and  to  the  grouping  of  fractions  into  a  ticket 
for  the  Reich.  As  for  the  division  of  German  territory  into 
new  electoral  districts,  smaller  and  more  equal  in  extent  than 
those  which  had  served  in  the  election  of  the  National  As- 
sembly, but  districts  that  could  be  united  into  "groups  of 
districts,"  that  was  an  interesting  innovation.  But  if  this 
was  to  be  effected  it  would  be  necessary  to  adopt  in  their  en- 
semble the  projects  admitted  to  the  Assembly.  Meanwhile 
the  question  presented  itself  whether  the  party  organizations 
would  be  able  to  accomodate  themselves  to  so  radical  a  change 
in  the  division  of  districts,  given  the  brief  delay  which  would 
be  accorded  them  until  the  elections.  The  Minister  referred 
the  question  to  the  deputies  themselves  to  answer,  as  being  in 
closer  contact  with  the  organizations  of  their  parties.  The 
Assembly  decided  to  retain  in  principle  the  electoral  districts 
that  had  served  in  their  own  election;  the  only  modifications 


108  THE  GERMAN  CONSTITUTION 

to  be  made  were  those  necessitated  by  very  grave  imperfec- 
tions of  the  distribution. 

Having  rejected  a  new  distribution  of  districts,  the  Assem- 
bly had  also  logically  to  reject  the  institution  of  "tickets  of 
groups  of  districts"  as  a  substitute  for  district  tickets  ;  it  thus 
came  back  to  the  system  of  Project  A — fixed  districts  for  all 
parties  and  the  assigning  of  fractions  to  a  ticket  for  the 
Reich. 

This  ticket  for  the  Reich,  therefore,  would  have  been  pre- 
sented if  there  had  not  been  brought  forward  some  modifica- 
tions of  the  principle  because  of  grave  inconveniences.  Fore- 
most of  these  was  the  following  objection:  In  trying  to  appor- 
tion the  votes  cast  by  the  electors  for  the  National  Assembly 
according  to  the  mechanism  provided  by  Project  A,  it  was  seen 
that  18  per  cent  of  the  members  of  the  Reichstag,  that  is 
nearly  one-fifth,  would  be  elected  on  the  ticket  for  the  Reich 
and  it  was  estimated  that  such  a  result  in  the  elections  of 
future  Reichstags  would  be  but  little  compatible  with  the 
constitutional  principle  of  the  direct  vote.  It  was  decided 
in  rejecting  "group-of-districts  tickets"  to  create,  nevertheless, 
groups  of  districts.  Political  parties  could  declare  in  advance 
that  they  would  "unite"  within  these  groups  the  whole  or 
parts  of  their  district  tickets,  in  such  manner  that  the  votes 
cast  for  these  tickets  and  remaining  unutilized  would  be 
assigned  to  the  district  tickets  receiving  the  largest  number 
of  votes.  It  would  not  be  until  this  second  redistribution 
that  the  fractions  would  be  transferred  to  the  ticket  for 
the  Reich.  The  object  was  to  avoid  the  possibility  that  by 
assigning  fractions  to  "joined"  tickets  and  to  the  ticket  for  the 
Reich,  the  big  political  parties  would  be  thereby  risking  loss 
to  the  advantage  of  small  groups  of  electors  which  could  not 
assemble  within  any  district  an  appreciable  number  of  votes. 

For  this  reason  the  following  double  distribution  was 
adopted.  No  party  will  be  entitled  to  a  seat  by  "joining" 
its  district  tickets  unless  one  of  its  tickets  has  obtained  at 


THE  ELECTORATE  AND  ELIGIBILITY    109 

least  30,000  votes  (half  of  the  number  necessary  to  elect  a 
member).  No  party  will  be  assigned  on  the  ticket  for  the 
Reich  a  larger  number  of  members  of  the  Reichstag  than  had 
been  elected  for  that  party  in  the  districts  on  the  district 
tickets. 

n. — THE  ELECTORATE  AND  ELIGIBILITY. 

In  principle  every  German  twenty  years  old  is  an  elector, 
without  distinction  of  sex. 

Causes  for  the  deprivation  of  the  electoral  right  of  indi- 
viduals are  reduced  to  a  minimum.  The  only  ones  denied 
this  right  are  those  who  are  placed  under  guardianship  and 
those  who  have  been  deprived  of  their  civic  rights  by  a  court 
decision.  Bankrupts  and  paupers  preserved  their  electoral 
rights,  in  contrast  to  their  situation  before  the  war.  Soldiers 
who  had  taken  part  in  the  elections  for  the  National  Assem- 
bly were  again  disenfranchised  so  long  as  they  remained  under 
colours.  Finally  certain  other  conditions,  which  did  not  in- 
volve the  loss  of  electoral  rights,  still  prevented  their  exercise: 
detention  in  institutions  for  mental  ailments  and  imprison- 
ment, including  preventive  imprisonment.  The  laws  speci- 
fied, however,  that  individuals  imprisoned  for  political  rea- 
sons could  demand  that  measures  be  taken  to  permit  them 
to  exercise  the  right  to  vote. 

To  be  able  to  vote,  when  one  is  an  elector,  one  has  to  be 
entered  on  an  electoral  list  or  on  an  electoral  roll,  or  be  fur- 
nished with  an  "electoral  certificate."  These  last  two  insti- 
tutions are  unknown  in  France  and  must  be  explained. 

Germany  ignores  the  principle  known  as  permanence  of 
electoral  lists.  Before  the  Revolution  electoral  lists  were  in 
principle  revised  for  each  election  to  the  Reichstag.  But  the 
granting  to  women  of  the  right  to  vote,  which  doubled  the 
number  of  electors,  and  the  fact  that  thereafter  the  electors 
of  the  Reich  would  have  to  vote  not  only  everj'^  four  years 
for  the  Reichstag,  but  also  in  the  election  of  the  President,  and 


110  THE  GERMAN  CONSTITUTION 

in  cases  of  referendum,  initiative,  and  plebiscites  provided  by 
the  Constitution,  have  increased  the  difBculty  of  retaining 
the  former  system  pure  and  simple. 

There  were  in  addition  different  proposals  made  to  abolish 
it  completely  and  to  replace  it  by  a  procedure  which  would 
do  away  entirely  with  electoral  lists.  There  would  be  given 
to  each  elector  an  "electoral  passport"  or  a  "citizenship  card"  ^ 
which  would  be  sufiBcient  to  enable  him  to  vote.  But  these 
propositions  were  rejected  because  of  the  considerable  cost 
of  the  passports  or  of  the  cards,  and  because  of  the  technical 
difiBculties  of  furnishing  adequate  photographs  of  all  the 
electors,  necessitated  by  this  scheme;  and  in  addition  because 
for  certain  votes,  such  as  plebiscites  and  initiatives,  it  is  neces- 
sary that  the  number  of  individuals  having  the  right  to  vote 
be  known,  which  would  be  difficult  according  to  the  systems 
proposed. 

Another  proposal  achieved  more  success;  that  of  electoral 
cards.  This  system  consists  in  this,  that  electoral  lists,  in- 
stead of  being  made  up  by  the  administrative  authorities,  are 
made  up  by  the  electors  themselves.  To  this  end  there  are 
given  by  the  communes  to  their  electors  cards  which  consist  of 
several  coupons.  The  elector  fills  out  his  card  and  returns  it 
to  the  municipality,  which  verifies  and  completes  it.  The 
cards  are  then  sent  to  the  seat  of  the  electoral  district  and 
are  numbered.  Then  the  coupons  are  detached.  Coupons 
Number  1  make  up  the  electoral  lists;  coupons  Number  2 
make  up  a  duplicate  ;  coupons  Number  3  are  sent  back  to  the 
electors.  This  last  coupon  is  for  the  elector  a  proof  that  he 
is  entered  on  the  electoral  rolls  and  establishes  his  identity 
and  the  number  he  bears  on  the  roll,  before  the  election  board. 
It  is  his  voting  card. 

This  system  is  a  simplification,  in  the  sense  that  it  dispenses 
with  the  making  of  an  alphabetical  list  and  puts  part  of  the 

^  There  are  differences  of  detail  between  these  two  modes,  but  of  no 
importance. 


THE  ELECTORATE  AND  ELIGIBILITY    111 

work  on  the  elector.  But  in  spite  of  these  advantages  it  has 
not  been  completely  adopted.  The  electoral  law  provides, 
that,  the  different  districts  before  each  election  must  prepare 
lists  of  its  electors;  and  it  leaves  to  them  the  choice  of  pre- 
paring this  list  either  according  to  customary  rule  for  electoral 
lists,  or  according  to  the  procedure  of  electoral  cards. 

The  elector  is  entered  on  the  list  of  the  district  in  which 
he  lives,  and  it  is  there  theoretically  that  he  is  supposed  to 
vote.  But  there  is  an  exception  to  this  rule;  if  he  is  away 
from  home  on  the  day  of  election,  either  because  of  business 
reasons  that  compel  his  travelling  at  the  time  of  election,  or 
because  of  a  necessary  absence  at  some  health  resort,  or  be- 
cause he  has  had  to  change  his  residence  before  election,  he 
can  demand  an  electoral  certificate  ^  which  will  permit  him 
to  vote  in  any  electoral  district  of  the  Reich. 

This  innovation  has  appeared  to  present  little  danger,  for 
in  the  new  electoral  system  a  political  party  is  never  inter- 
ested in  getting  more  votes  in  one  district  than  in  another. 

Every  elector  is  eligible  as  candidate  for  the  Reichstag  on 
the  double  condition  that  on  the  day  of  election  he  is  twenty- 
five  years  old,  and  that  he  has  been  a  naturalized  German 
for  at  least  a  year.  In  addition  to  this  he  must  be  regularly 
placed  on  the  list  of  candidates. 

It  will  be  recalled  that  for  the  National  Assembly  every 
elector  was  eligible;  one  could  thus  be  elected  member  at  the 
age  of  twenty.  Actually,  however,  the  youngest  elected  was 
twenty-seven  years  old.  The  new  law  returned  to  the  rule 
followed  for  the  former  Reichstag  in  fixing  the  minimum  age 
at  twenty-five. 

It  must  be  noted  that  those  who,  without  being  permanently 
deprived  of  the  right  to  vote,  are  only  prevented  from  voting 

/The  origin  of  this  provision  Roea  back  to  the  "certificate"  that  waa 
given  in  the  elections  for  the  National  Assembly  to  soldiers  and  sailors 
returning  from  the  front  and  to  troops  assigned  to  service  for  the 
preservation  of  order  in  polling  places. 


112  THE  GERIMAN  CONSTITUTION 

by  certain  special  circumstances,  because  of  being  under 
colours,  or  imprisonment,  or  because  by  mistake  they  have 
been  left  off  electoral  lists,  are  eligible  for  election.  In  the 
same  way  civil  servants  are  also  eligible.  German  law  does 
not  know  relative  ineligibilities,  which  French  public  law 
admits. 

m. — PREPARATION  OF  ELECTIONS. 

In  a  country  of  sixty  million  inhabitants  of  whom  more 
than  half  are  electors  and  vote,  above  all,  where  the  system 
of  proportional  representation  has  been  adopted,  preparation 
of  the  elections  takes  on  special  importance.  An  organization 
must  be  provided  which  permits  to  each  elector  the  exercise 
of  his  right,  and,  as  far  as  possible,  facilitates  it. 

German  law  provides  to  this  end  a  rather  complex  machin- 
ery. First,  it  provides  for  a  table  of  thirty-five  electoral  dis- 
tricts into  which  the  territory  of  the  Reich  is  divided,  and  for 
seventeen  groups  of  districts,  into  which  districts  are  joined. 

Then  it  institutes  a  whole  series  of  organisms  appointed  by 
the  administration  and  charged  with  the  duty  of  seeing  that 
the  electoral  procedure  was  carried  out  properly.  These  or- 
ganisms are: 

1.  Electoral  committees,  which  have  as  their  function  the 
examination  of  lists  of  candidates,  the  union  of  such  tickets, 
and  the  compiling  of  the  election  results  for  each  degree  of 
the  distribution  of  seats  in  the  Reichstag.  There  are  electoral 
committees  for  each  district,  for  each  group  of  districts,  and  a 
committee  for  the  Reich.  2.  Superintendents  of  elections, 
who  preside  over  electoral  committees,  whose  function  for  each 
stage  of  division  of  seats  is  to  confer  with  the  representatives 
of  political  parties,  to  receive  lists  of  candidates  and  the 
declarations  in  which  the  parties  "join"  their  tickets  or  make 
up  a  ticket  for  the  Reich  ;  these  superintendents  announce  the 
decisions.  3.  Chairmen  of  election  boards  who  supervise 
the  electoral  operations  in  their  boards.    4.     Election  boards 


DISTRIBUTION  OF  SEATS  113 

which  consist,  in  addition  to  the  chairman,  of  three  members 
and  six  assistants,  who  supervise  the  voting  and  pass  on  the 
validity  of  ballots.  5.  Men  trusted  by  political  parties  who 
serve  as  intermediaries  between  them  and  the  administrative 
authorities.    6.    Distributors  of  electoral  envelopes,  etc. 

The  law  specifies  very  clearly  the  manner  in  which  lists  of 
candidates  must  be  drawn  up  and  presented.  There  are  or  may 
be  for  each  party  district  tickets  and  a  ticket  for  the  Reich; 
there  are  no  tickets  for  groups  of  districts.  These  tickets  must 
include  only  eligible  candidates,  the  status  of  eligibility  of  a 
candidate  being  examined  by  the  competent  electoral  com- 
mittee. The  lists  must  be  signed  by  50  or  20  electors,  accord- 
ing to  whether  the  ticket  is  for  a  district  or  for  the  Reich.  A 
candidate  may  appear  on  the  tickets  of  different  districts  but 
not  more  than  once  within  the  same  district. 

Each  party  may  "join"  its  tickets;  which  is  distinguished 
from  "groups"  of  tickets,  such  as  were  allowed  in  the  elections 
for  the  National  Assembly.  The  "group"  of  tickets  was  a 
contract  between  the  signatories  of  two  or  more  tickets  of 
different  parties,  the  intention  being  to  have  these  tickets  con- 
sidered in  the  counting  of  ballots  as  one  and  the  same  tickets 
as  against  other  tickets.  It  was,  therefore,  an  electoral  alli- 
ance between  different  parties  within  the  same  district.  These 
unions  of  tickets,  as  we  have  seen,  are  now  forbidden.  The 
new  law,  on  the  other  hand,  provides  that  tickets  may  be 
"joined,"  that  is  to  say,  that  a  union  may  be  effected  of  tickets 
of  the  same  party  within  different  electoral  districts,  in  order 
to  utilize  best  the  electoral  fractions.  In  order  to  be  valid 
this  combination  must  take  place  within  the  same  group  of 
districts  and  between  lists  belonging  to  the  same  party,  that 
is  to  say,  joined  on  the  same  ticket  for  the  Reich. 

IV. — DISTRIBUTION  OF  SEATS. 

Seats  are  distributed  among  the  tickets. 

Each  district  ticket  receives  one  seat  for  every  60,000  votes 


114  THE  GERMAN  CONSTITUTION 

cast  for  it  in  that  district;  the  number  of  those  elected,  there- 
fore, depends  no  longer  on  the  vote  of  electors  or  of  inhabi- 
tants but  on  the  number  of  those  voting. 

The  votes  which  cannot  enter  into  this  count  because  their 
number  is  less  than  60,000  remain  unutilized  if  the  ticket  has 
not  been  joined  to  another  in  the  same  group  of  districts; 
or  if  it  has  not  been  combined  in  a  ticket  for  the  Reich.  But 
if,  as  is  the  case  usually,  the  situation  is  otherwise,  the  votes 
are  treated  differently,  according  as  one  of  two  of  the  follow- 
ing conditions  is  encountered: 

(a)  If  district  tickets  of  the  same  party  are  joined  together 
within  a  group  of  districts,  the  votes  constituting  the  fractions 
described  above  are  added  together  and  the  party  receives  as 
many  seats  as  there  are  groups  of  60,000  in  the  total.  These 
seats  are  assigned  to  the  ticket  that  receives  the  largest  frac- 
tion, on  the  condition  that  this  district  ticket  has  already  re- 
ceived at  least  30,000  votes.  The  design  is  to  avoid  the  pos- 
sibility that  small  groups,  in  joining  their  lists,  may  obtain  a 
seat  at  a  time  when  they  have  not  received  in  any  district 
half  the  number  of  votes  necessary  to  elect  a  member  of  the 
Reichstag.  If  this  condition  is  not  fulfilled  the  vote  fractions 
are  not  utilized. 

(b)  If  the  district  tickets  are  not  united,  all  these  vote  frag- 
ments are  immediately  transferred  to  the  Reich  ticket.  Here, 
too,  are  assigned  the  vote  fragments  that  remain  after  the  op- 
eration provided  in  the  above  provision,  (c)  The  ticket  for 
the  Reich  receives  a  member  for  every  60,000  votes  thereon. 
Beyond  that  every  fraction  in  excess  of  30,000  is  considered 
equal  to  60,000.  But  the  ticket  for  the  Reich  can  never 
obtain  more  seats  than  the  total  won  by  the  district  tickets 
whose  excess  fractions  have  been  united  therein;  for  here, 
too,  the  design  is  to  avoid  the  possibility  that  small  groups 
may  secure  more  seats  by  means  of  the  ticket  of  the  Reich 
than  they  have  received  by  direct  votes  in  the  districts  them- 
selves. 


THE  ACTUAL  WORKING  OF  THE  LAW     115 

The  distribution  of  seats  among  the  candidates  of  the  same 
ticket  is,  because  of  the  system  which  excludes  "splitting"  and 
the  joining  of  tickets,  extremely  simple.  Those  elected  are 
designated  according  to  the  order  in  which  their  names  appear 
on  the  tickets,  so  that  the  wish  of  the  electors  has  no  part 
in  this  matter. 

V. — THE  ACTUAL  WORKING  OF  THE  LAW. 

The  electoral  system  which  we  have  described  was  applied 
for  the  first  time  in  the  elections  to  the  first  Reichstag  of  the 
German  Repubhc  on  June  6,  1920.  From  the  purely  technical 
point  of  view  it  seems  to  have  worked  satisfactorily.  It  is 
interesting  above  all  to  inquire  how  the  two  principal  inno- 
vations in  these  elections  have  worked  out:  woman  suffrage 
and  the  automatic  distribution  of  seats. 

I. — Women  already  voted  in  January,  1919,  at  the  elections 
for  the  National  Assembly.  They  voted  in  considerable  num- 
bers. Of  the  women  eligible  to  vote  83  per  cent  did  so.  The 
percentage  among  the  men  was  82.4,  which  is  approximately 
the  same  as  the  women.  But  this  equality  disappears  when 
we  consider  the  proportion  according  to  the  ages  of  those 
voting.  Among  the  male  electors  twenty  years  old  only  59.6 
per  cent  voted;  whereas  among  the  women  of  the  same  age 
80.5  per  cent  voted.  Thus  the  young  women  seemed  twice 
as  zealous  to  use  the  new  privileges  that  had  been  accorded 
to  both.  Of  the  electors  from  twenty-one  to  twenty-five 
years  old,  70  per  cent  of  the  men  and  80.9  per  cent  of  the 
women  voted.  But  the  statistics  change  when  we  come  to  the 
older  groups.  Past  the  age  of  twenty-five  it  was  84.8  per 
cent  of  men  that  voted,  and  only  82.6  per  cent  of  women. 

At  the  elections  of  June,  1921,  fewer  women  seemed  to  have 
voted  than  the  year  before,  and  this  time  it  was  the  men  who 
proportionally  voted  in  larger  numbers. 

But  in  1920  there  was  tried  an  experiment  in  several  dis- 
tricts which  had  not  been  done  in  1919.    The  men  and  women 


49,154 

women 

24,134 

15,944 

8,973 

4,677 

3,422 

116  THE  GERMAN  CONSTITUTION 

of  these  districts  voted  in  separate  polling  places,  in  order  to 
determine  their  respective  strength  in  the  various  parties. 
We  will  cite,  among  other  facts,  two  instances  obtained  in 
cities  of  differing  political  complexion. 

In  Cologne  119,263  men  and  110,364  women  voted  in  the 
sections  in  which  this  experiment  was  carried  out.  The  vote 
was  distributed  as  follows: 

Centre 32,964  men 

Social  Democrats    . . .  36,295 

People's  Party  17,768 

Independents   .......   18,245 

Democrats    6,554 

German  Nationals  . . .    3,190 

In  Spandau  23,294  men  voted  and  23,359  women.  Out  of 
every  100  men  and  100  women  the  different  parties  receive 
the  following  proportion: 

Independents 35.4  men 

Social  Democrats    21.3  " 

German  Nationals   12.8  " 

People's   Party    12.5  " 

Democrats   8.3  " 

Communists    6.3  " 

Centre    3.2  " 

Other  parties 2    "  .2      " 

Thus  in  the  two  districts  women  voted  more  for  the  Centre 
and  the  parties  of  the  Right. 

Of  the  total  vote  cast  for  the  Independent  Socialist  Party 
33  per  cent  were  women.  In  the  Social  Democratic  party 
the  proportion  rose  to  40  per  cent.  For  the  parties  of  the 
Right  the  percentage  was  52.  Whereas  of  the  Centre  women 
comprised  60  per  cent. 

The  newspapers  of  the  Left  noted  bitterly  this  irony  of  his- 
tory, that  it  is  precisely  the  parties  that  have  always  been 
against  woman  suffrage  that  are  most  strongly  supported 
by  women. 


32.6 

women 

19.3 

16.7 

14.5 

7.5 

4.2 

5.0 

THE  ACTUAL  WORKING  OF  THE  LAW     117 

IL — The  application  of  the  automatic  system  has  had  sev- 
eral interesting  results. 

Throughout  Germany  there  were  cast  26,017,590  votes. 
This  gave  the  Reichstag  466  members.  The  votes  and  the 
seats  were  distributed  as  follows: 

Parties  Votes  Seats 

Social  Democrats   5,614,456  112 

Centre    3,540,830  68 

Democrats    2,202,394  45 

German  Nationals 3,736,778  66 

People's  Party   3,606,316  62 

Independents    4,895,317  81 

Communists   441,995  2 

Bavarian  Peasants'  Union 218,884  4 

Guelphs   319,100  5 

Christian  Federalists  1,171,722  21 

One  may  wonder  that  the  Communists  with  441,995  votes 
received  only  two  seats.  This  is  explained  by  the  fact,  al- 
though they  had  put  up  tickets  in  all  the  districts  they  did 
not  receive  more  than  60,000  votes,  that  is  one  seat,  in  any 
district  other  than  Chemnitz.  The  votes  that  had  been  cast 
for  them  in  the  other  districts  and  the  excess  of  60,000  re- 
ceived in  Chemnitz  were  transferred  to  their  ticket  for  the 
Reich.  But  there  they  could  not  receive  more  than  one  seat 
according  to  the  provision  that  no  ticket  for  the  Reich  may 
receive  more  seats  than  the  number  which  the  party  in 
question  has  won  in  the  districts  directly. 

Of  the  members  elected  329  were  elected  directly  in  the 
electoral  districts;  44  were  elected  in  the  district  groups;  51  on 
the  tickets  of  the  Reich;  42  other  members  were  sent  by  terri- 
tories in  which  plebiscites  had  been  ordered.  These  districts 
had  not  participated  in  the  elections,  and  retained  until  the 
new  system  the  representation  they  had  received  in  the  elec- 
tion for  the  National  Assembly. 

It  must  be  noted  finally,  what  could  have  been  foreseen  and 


118  THE  GERMAN  CONSTITUTION 

what  was  aimed  at  by  the  law,  that  the  number  of  votes  not 
utilized  is  extremely  small.  The  smallest  fragment  discarded 
was  that  of  the  People's  Party  with  8,851  votes;  then  came 
the  Independents  with  9,872  votes  ;  the  Social  Democrats  with 
11,457  votes,  etc. 

The  cases  in  which  a  fragment  of  more  than  30,000  votes 
became  equivalent  to  60,000  and  therefore  won  seats  were  as 
follows:  Democrats,  German  Nationals,  Christian  Federalists. 

3. — DIRECT  GOVERNMENT. 

Universal  suffrage  is  the  means  by  which  the  sovereign 
people  manifests  its  will  in  a  democracy.  Once  the  election 
is  over  it  leaves  to  the  representatives  it  has  elected  the  free- 
dom of  directing  in  its  name  the  affairs  of  the  state.  This  is 
the  system  of  representative  government.  At  the  same  time 
the  people  give  their  representatives  only  limited  powers,  and 
they  reserve  the  right  themselves  to  decide  on  certain  particu- 
larly important  affairs.  In  such  a  case  there  is  direct  gov- 
ernment. This  system  constitutes  obviously  an  immediate 
application  of  the  democratic  idea;  and  it  may  be  said  that 
that  Constitution  is  most  democratic  which  avails  itself  most 
of  direct  government. 

The  National  Assembly  has  admitted  without  any  difficulty 
the  principle  of  direct  government  into  the  Constitution.  Ac- 
cording to  the  expression  of  Preuss,  direct  government  to-day 
is  a  "postulate  of  democracy";  to  this  the  Social  Democrat 
Quarck  has  added  that  direct  government  is  "an  essential 
element  of  democracy  for  which 'to-day  there  have  been  found 
positive,  practical,  and  scientific  forms,  according  to  estab- 
lished principles  of  public  law."  ^ 

But  in  this  form  of  government  there  is  found  not  only  a 
logical  consequence  of  the  principle  of  national  sovereignty; 
there  are  also  in  it  certain  considerable  advantages. 

*  Session  of  July  7,  1919.     (Heilfron,  op  cit.,  vol.  V,  p.  3314.) 


DIRECT  GOVERNMENT  119 

First,  there  is  the  educational  value  in  the  fact  that  the 
people  participate  directly  in  the  conduct  of  public  affairs. 
It  is  true  it  sometimes  happens,  in  countries  which  have  al- 
ready applied  this  form  of  government  that  a  decision  of  the 
people,  far  from  constituting  progress,  actually  marks  if  not 
retrogression,  at  least  an  arrest  in  the  development  of  social 
legislation,  or  even  in  some  matter  of  general  policy.  Never- 
theless the  very  efforts  that  are  made  to  convince  the  people 
and  to  bring  them  back  to  primary  considerations,  constitutes 
the  best  kind  of  civic  teaching  and  gives  them  a  political  ex- 
perience, the  value  of  which  in  a  democracy  cannot  be  exag- 
gerated. The  collaboration  of  great  strata  of  the  population 
in  the  creation  of  laws  and  in  political  life  profoundly  edu- 
cates the  masses  in  the  principles  of  their  Constitution;  and 
an  institution  which  has  been  established  in  a  country  after 
bitter  struggles,  perhaps  after  several  defeats,  becomes  there- 
after almost  impregnable,  or  cannot  be  discarded  except  with 
extreme  difiSculty. 

In  addition  direct  government  constitutes  the  best  system 
of  democratic  control  over  the  organs  of  the  state.  Care 
must  be  taken  in  a  democracy  to  institute  control  over  con- 
trol; for  democratic  government  is  essentially  the  reign  of 
trust.  The  destinies  of  a  nation  should  not,  therefore,  depend 
exclusively  on  the  parliament.  While  one  may  be  for  parlia- 
mentary government,  one  may  still  fear  that  a  powerful  ma- 
jority may  establish  a  veritable  dictatorship  and  oppress 
minorities;  or  that  a  majority  formed  by  chance  combina- 
tions may  show  itself  incapable  of  action  and  retard  indefi- 
nitely the  adoptions  of  measures  impatiently  awaited  by  the 
people. 

There  is,  then,  place  in  Germany  for  direct  government;  but 
to  what  extent?  At  first  this  place  seems  quite  limited.  Preuss, 
who  in  his  draft  of  the  Constitution  made  only  limited  use  of 
it,  presented  direct  government  as  convenient  above  all  for 
small  states;  but  he  doubted  that  one  could  apply  it  in  any 


120  THE  GERMAN  CONSTITUTION 

considerable  number  of  ways  in  a  big  country  like  Germany. 
In  spite  of  this  opinion  directfgovcrnment  gained  ground  little 
by  little  and  in  the  final  text  occupies  considerable  place. 
One  finds  in  the  Constitution  not  only  the  classic  forms  of 
constitutional  and  legislative  initiative  and  referendum  such 
as,  for  example,  have  been  traditionally  employed  in  Swiss 
and  American  democracies;  but  also  we  find  there  new  appli- 
cations of  direct  government. 

The  people  express  themselves  not  only  on  the  text  of  a 
law.  They  are  also  the  great  political  judges,  the  supreme 
arbiters  to  whom  must  be  submitted  all  difficulties  of  vital 
importance  to  the  nation.  The  people  give  to  the  organs 
chosen  by  them  the  right  to  legislate  and  to  govern;  but  if  a 
discord  arises  between  these  organs  or  if  these  organs  once 
nominated  do  not  bend  to  the  'people's  will,  they  intervene 
themselves  on  the  appeal  of  one  of  the  organs  or  of  their 
own  accord.  Direct  government  expresses  itself,  therefore, 
when  a  conflict  arises  either  between  the  organs  of  national 
representation,  or  between  this  representation  and  the  nation 
itself.  In  these  two  cases  it  is  the  people  who  decide  the 
conflict. 

First,  then,  discord  may  arise  between  the  organs  of  na- 
tional representation.  Being  given  a  multiplicity  of  these 
organs  the  issues  in  which  the  people  is  thus  appealed  to  for 
intervention  may  be  of  several  kinds. 

(1)  The  conflict  may  arise  between  two  legislative  cham- 
bers of  the  Reich.  If  the  Reichstag  and  the  Reichsrat  can- 
not agree  on  the  text  of  a  law,  the  President  of  the  Reich  may 
or  must,  according  to  circumstances,  order  the  text  to  be  sub- 
mitted to  a  popular  referendum.  The  conditions  under  which 
this  referendum  is  to  take  place  are  different  according  to 
whether  the  law  in  question  is  a  constitutional  one  or  an 
ordinary  law. 

If  the  law  in  question  is  to  be  an  amendment  of  the  Con- 


DIRECT  GOVERNMENT  121 

stitution,  the  presupposition  is,  that  (Article  76)  this  change 
has  been  passed  by  the  Reichstag  and  objected  to  by  the 
Reichsrat.  If  the  Reichstag  does  not  yield  to  this  objection 
and  persists  in  its  first  decision,  or  if  it  modifies  it  but  in 
a  manner  not  entirely  conforming  to  the  exigencies  of  the 
Reichsrat,  the  latter  may  demand  a  referendum  and  the 
President  must  order  it. 

If,  on  the  other  hand,  it  is  an  ordinary  law  that  is  in  ques- 
tion, the  presupposition  is  again  that  the  Reichsrat  has  ob- 
jected to  a  law  voted  by  the  Reichstag  and  that  the  latter 
disregards  this  objection.  The  President  in  such  a  case  is 
allowed  to  decide  whether  the  situation  remains  as  it  is — that 
is  to  say,  that  the  projected  law  fails  of  enactment;  or,  that 
the  difiiculty  between  the  two  Assemblies  shall  be  submitted 
to  a  referendum.  It  must  be  noted  besides  that  these  matters 
referred  for  referendum  to  the  people  must  be  limited  to  the 
divergencies  arising  between  the  two  assemblies,  and  that  the 
people  pronounce  for  either  the  text  of  one  assembly  or  that 
of  the  other.  If,  however,  the  Reichstag  has  rallied  a  ma- 
jority of  two-thirds  against  the  objection  raised  by  the 
Reichsrat  the  choice  on  the  part  of  the  President  is  thereby 
limited.  He  can  only  either  promulgate  or  publish  the  law, 
or  refer  it  to  the  people. 

(2)  The  conflict  may  arise  between  Parliament  and  the 
President;  and  this  may  present  two  quite  different  aspects. 

The  two  chambers  are  in  accord  on  the  text  of  a  law  which 
the  President  does  not  approve;  this  is  the  first  kind  of  con- 
flict. In  such  a  case,  unless  the  President  wants  to  pro- 
mulgate the  law  adopted,  he  must  submit  the  text  to  a  referen- 
dum (Article  73,  par.  2).  It  is  in  effect  a  very  strong  right 
of  veto  given  to  the  President  and  accorded  to  him  without 
much  difficulty.  The  Independents,  however,  in  accordance 
with  their  thesis  of  the  uselessness  of  the  President,  did  not 
want  to  grant  this  right  to  appeal  to  the  people  in  such  a  case, 
except  to  a  responsible  minister.    Also  the  members  of  the 


122  THE  GERMAN  CONSTITUTION 

German  People's  Party  opposed  the  granting  of  this  power  as 
useless,  being  a  duplication  of  the  President's  right  to  dissolve 
Parliament.  The  majority  of  the  Assembly,  however,  dis- 
agreed with  them. 

The  German  Nationals  saw  in  this  measure  new  opportunity 
to  strengthen  the  authority  of  the  President  and  did  not  let 
the  occasion  escape  them.  The  parties  of  the  coalition,  on  the 
other  hand,  felt  that  in  investing  the  President  with  these 
powers  they  only  applied  logically  their  democratic  principles. 
The  referendum  appeared  to  them,  in  addition  in  this  particu- 
lar case,  less  of  an  increase  of  the  President's  powers  than  as 
a  corrective  of  the  fact  that  he  has  powers  too  great.  A 
democracy,  according  to  them,  can  with  less  risk  give  itself 
a  strong  executive,  if  it  also  includes  among  them  his  right 
to  call  a  referendum  in  case  of  conflict,  which  would  thereby 
enable  the  people  to  rule  on  the  conflict.  On  the  other  hand, 
the  supporters  of  the  principle  of  separation  of  powers  sup- 
ported this  use  of  the  referendum,  which  seemed  to  them  more 
in  conformity  with  their  principles  than  the  power  to  dis- 
solve the  Reichstag. 

Another  kind  of  conflict  which  can  arise  between  the  Reichs- 
tag and  the  President  is  not  merely  a  question  of  legislation 
but  of  general  policy.  According  to  the  terms  of  Article  43, 
par,  2,  "the  President  may  be  removed  by  the  vote  of  the 
people  on  proposal  of  the  National  Assembly."  This  pro- 
vision was  adopted  without  discussion  and  its  presence  in  the 
German  Constitution  is  quite  understandable.  The  National 
Assembly  wished  to  create  a  strong  president;  in  fact,  it  has 
given  him  almost  absolute  power.  He  is  the  man  entrusted 
by  the  people  along  with  the  Reichstag  and  the  Cabinet.  If 
he  betrays  this  trust  who  other  than  the  people  themselves 
should  decide  that?  But  if  he  has  retained  the  confidence 
of  the  people,  what  is  there  to  fear  from  his  being  brought 
before  it  as  a  tribunal?  In  addition  to  this  Article  43  speci- 
fies wisely  that  the  vote,  whereby  the  Reichstag  decides  to 


DIRECT  GOVERNMENT  123 

place  the  question  of  removal  of  the  President  before  the 
public,  must  be  a  majority  of  two-thirds.  Finally  the  same 
Article  logically  provides  that  if  the  people  pronounce  against 
the  removal  of  the  President  in  such  an  instance,  the  Reichs- 
tag is  thereby  dissolved,  for  it  is  the  latter  in  such  a  situation 
that  has  ceased  to  be  in  contact  with  the  people. 

(3)  A  conflict  can  also  arise  within  the  Reichstag  itself. 
The  hypothesis  is  provided  by  Article  73,  par.  2,  thus:  "A 
law  whose  promulgation  is  deferred  at  the  demand  of  at  least 
one-third  of  the  National  Assembly  shall  be  submitted  to  the 
people,  if  one-twentieth  of  the  qualified  voters  so  petition." 

This  procedure  complicates  the  work  of  the  legislator.  Dr. 
Heinze,  member  of  the  German  People's  party,  has  developed 
the  following  argument  with  much  force:  A  project  of  law  has 
been  sent  by  the  Cabinet,  with  the  approval  of  the  National 
Council,  to  the  Reichstag,  which,  however,  votes  a  different 
text  for  it.  This  text  comes  back  to  the  Reichsrat,  which 
raises  objection  to  it.  The  Reichstag  on  a  reconsideration 
of  the  text  adopts  a  compromise,  as  in  the  great  majority  of 
actual  instances.  But  there  is  always  in  the  Reichstag  a 
minority  opposed  to  this  compromise,  one  which  proposes  to 
postpone  the  promulgation  of  the  law  and  to  submit  it  to  a 
referendum.  For  this  proposal  to  become  operative,  it  is 
required  that  one-twentieth  of  the  electors  of  the  Reich  sup- 
port it,  which,  if  obtained,  compels  a  popular  referendum  on 
this  matter.  This  procedure  is  extremely  complicated  and 
can  often  become  dangerous.  For  one-third  of  the  Reichstag, 
forced  by  the  party  or  the  group  that  is  behind  it,  can  feel 
itself  obliged  to  propose  a  referendum  to  the  people  even 
when  the  Reichstag  and  the  Reichsrat  have  concluded  hap- 
pily a  precise  agreement.  Into  this  agreement  there  becomes 
injected  a  referendum  with  all  its  hazards.^ 

In  spite  of  this  criticism  the  text  was  adopted  because  in 
Germany  cabinets  are  most  often  formed  by  temporary  coali- 
'  Session  of  July  7,  1919.    (Ilcilfron,  op.  cit.,  vol.  V,  pp.  3299-3300.) 


124  THE  GERMAN  CONSTITUTION 

tion  of  parties;  and  the  provision  in  question  has  the  effect  of 
giving  an  existing  coalition  longer  life  and  permitting  the  solu- 
tion of  disputes,  thereby  avoiding  the  break-up  of  the  coali- 
tion or  a  dissolution  of  the  Reichstag. 

(4)  A  conflict,  finally,  may  arise  between  the  government 
of  the  Reich  and  that  of  a  state  over  the  question  which  is 
perhaps  the  most  serious  one  that  can  arise  in  a  federal  state — 
the  territorial  constitution  of  member  states.  Suppose  the 
question  comes  up  of  either  changing  the  territorial  boun- 
daries of  a  state  or  forming  a  new  state.  If  one  of  the  states 
in  question  refuses  to  give  its  consent  the  population  is  then 
consulted  and  it  decides. 

There  is  another  kind  of  conflict,  more  serious  perhaps  than 
those  just  examined.  These  are  the  conflicts  that  arise  be- 
tween the  people  and  its  representatives.  Let  us  suppose  that 
the  latter  do  not  carry  out  the  provisions  or  the  orders  given 
them  by  the  people.  The  latter  in  such  a  case  take  matters 
into  their  own  hands,  with  or  without  the  collaboration  of  the 
representatives,  and  impose  their  will  upon  them.  Such  a 
procedure  is  popular  initiative. 

But  here,  too,  several  hypothesis  must  be  distinguished: 

(1)  The  people,  for  example,  want  a  law  which  its  repre- 
sentatives do  not  give  it.  Shall  the  people  be  given  the  right 
themselves  to  bring  that  law  into  being? 

The  parties  of  the  Right  of  the  Assembly  supported  the 
negative  to  this  question  with  considerable  force.  They 
held  that  to  give  the  people  such  a  right  to  initiate  legislation 
is  to  set  up  a  rule  of  mistrust  against  the  qualified  organs  of 
national  representation.  Once  these  organs  are  elected,  they 
bear  the  responsibility  of  their  decisions  in  the  eyes  of  the 
nation,  and  the  latter  must  give  them  freedom  to  act.  But 
to  submit  representatives  to  the  incessant  control  on  the  part 
of  the  people  is  an  exaggerated  democratization.  Further,  if 
the  Reichstag  does  not  pass  the  law  demanded  by  the  people, 


DIRECT  GOVERNMENT  125 

the  President,  the  man  in  whom  trust  has  been  placed  by  the 
nation,  has  only  to  dissolve  the  Reichstag.  Modern  laws, 
also,  are  too  complicated  for  the  people  to  be  able  to  give 
qualified  decision  on  everything  they  feel  like  deciding. 

The  supporters  of  such  initiative  replied  that  a  control  of 
this  kind  over  Parliament  could  not  be  instituted  by  leaving 
it  all  to  the  President  of  the  Reich  alone.  Occasions  may 
arise  in  which  both  the  President  and  the  Reichstag  have  lost 
contact  with  public  opinion;  in  which  case  it  would  be  neces- 
sary for  the  people  to  make  its  voice  heard.  It  is  also  a  truth 
born  of  experience  that  all  great  political  and  social  thoughts 
are  at  first  the  product  of  very  small  groups,  and  it  is  only 
little  by  little  that  these  become  impressed  on  the  masses. 
The  initiative  is  only  a  particular  form  of  this  evolution,  and 
it  presents  also  this  advantage,  that  it  gives  the  popular  move- 
ment the  chance  to  concentrate  on  a  particular  and  important 
question,  instead  of,  as  in  ordinary  elections,  becoming 
dissipated  among  a  large  number  of  questions  of  unequal 
interest.  Finally,  the  example  of  Switzerland  is  very  encour- 
aging. The  proof  is  found  there  that  the  people  often  see  more 
clearly  than  their  government,  and  that  the  initiative  is  the 
most  solid  bulwark  against  the  impositions  of  extremists.  In 
the  last  analysis  the  possibility  of  a  popular  initiative  makes 
the  political  activity  of  the  government  more  living,  and  in- 
fluences public  agencies  democratically  in  a  very  desirable 
sense. 

Finally  legislative  initiative  by  the  people  has  been  in- 
cluded in  the  Constitution  (Article  73,  par,  3),  but  under  cer- 
tain conditions.  It  is  required  that  a  detailed  bill  be  sub- 
mitted, to  avoid  the  possibility  that  the  people  may  be  called 
to  decide  merely  on  a  general  principle,  about  which  it  is 
very  easy  to  create  an  artificial  disturbance.  It  provides 
that  one-tenth  of  the  electors  of  the  nation  must  support  this 
bill.  This  approval  given,  the  Cabinet  is  obliged  to  submit 
the  text  to  the  Reichstag  after  stating  its  own  attitude  on  it. 


126  THE  GERMAN  CONSTITUTION 

The  Assembly  then  either  accepts  the  bill,  thus  satisfying  the 
people;  or  it  changes  or  rejects  it;  in  which  case  a  referendum 
is  then  resorted  to,  in  which  the  people  decides  as  the  final 
resource. 

(2)  A  second  hypothesis  is  that  in  which  a  conflict  between 
its  people  and  its  representatives,  or  a  part  of  its  representa- 
tives, occurs  as  in  the  case  we  have  already  described,  where 
a  third  of  the  members  of  the  Reichstag  demand  that  the 
promulgation  of  a  law  be  deferred.  It  is  recalled  that  in  such 
a  case  a  referendum  is  obligatory  if  one-twentieth  of  the 
electors  of  the  nation  support  the  demand  of  these  deputies. 
There  is  in  this  a  combination  of  the  initiative  and  the  refer- 
endum. The  action  of  the  deputies  of  the  minority  of  the 
Reichstag  in  order  to  achieve  a  referendum  must  be  supported 
by  an  already  considerable  number  of  the  country's  electors. 

But  it  must  be  noted — and  this  applies  equally  to  the  two 
kinds  of  initiative  we  refer  to — that  according  to  the  terms 
of  Article  73,  par.  4,  certain  laws  are  not  open  to  popular 
initiative,  and  consequently  to  referendum.  These  are  the 
laws  which  because  of  their  financial  character  offer  to  electors 
a  very  strong  temptation  to  profit  by  their  sovereignty  to 
make  their  personal  interest  prevail.  Such  laws  are  those 
on  the  budgets  and  taxes  and  those  relating  to  the  salaries  of 
civil  servants. 

(3)  There  is  finally  a  last  instance  in  which  popular  initia- 
tive may  operate.  It  is  that  provided  by  Article  18,  par.  4, 
whereby  a  population  wishes  the  government  of  its  state  and 
the  government  of  the  Reich  to  proceed  to  a  change  in  the 
territory  of  the  state  or  to  the  creation  of  a  new  one.  If 
one-third  of  the  inhabitants  demand  it  the  Cabinet  of  the 
Reich  is  obliged  to  order  a  referendum. 

Such  are  the  conditions  and  the  limits  within  which  the 
Constitution  provides  for  direct  government  within  the  Reich. 
It  prescribes  that  a  law  shall  be  enacted  regulating  the  details 


DIRECT  GOVERNMENT  127 

of  the  application  of  the  principles  it  puts  forward;  but  up  to 
the  present  time  this  law  has  not  yet  been  enacted.  The 
Cabinet  has,  however,  proposed  a  bill  concerning  it.^ 

In  the  case  of  discord  between  the  organs  of  the  state,  that 
is  to  say,  in  the  case  where  the  people  are  called  in  by  one  of 
the  organs  in  conflict,  the  government  proposes  to  apply, 
mutatis  mutandis,  the  procedure  prescribed  by  the  elec- 
toral law. 

For  the  initiative,  the  procedure  is  naturally  more  compli- 
cated, for  it  consists  of  two  phases.  One  part  of  the  people 
takes  the  initiative  and  collects  support  for  it.  If  this  sup- 
port attains  the  numbers  prescribed  by  the  Constitution,  a 
referendum  is  called.  The  initiative,  therefore,  is  always  fol- 
lowed by  a  referendimi,  unless  in  the  interim  the  authors  of 
the  initiative  have  been  satisfied  otherwise. 

The  diflSculty  is  to  organize  effectively  the  first  phase  of 
this  procedure,  to  launch  the  initiative  properly  so-called,  in 
a  country  comprising  on  the  average  thirty  million  electors 
who  vote.  In  the  Swiss  cantons,  and  in  the  United  States  of 
America,  the  initiative  comes  into  being  by  the  gathering  of 
signatures  to  a  petition.  In  Switzerland  such  signatures  of 
electors  often  require  authentification  ;  but  this  leads  to  con- 
siderable difficulty,  for,  frequently  the  electors  have  their 
names  signed  by  others  whom  they  delegate  to  do  so.  In 
certain  of  the  United  States  the  conditions  for  the  exercise 
of  the  right  of  initiative  are  variable.  Often  it  is  sufiScient 
that  the  individuals  who  gather  the  signatures  to  such  peti- 
tions give  assurance  that  the  signers  arc  qualified  electors. 

In  Germany  it  is  believed  that  such  a  system  could  not 
be  accepted  and  a  procedure  has  been  considered  in  which 
the  electors  would  inscribe  themselves  on  lists  placed  at  their 
disposal  by  district  authorities.  In  addition  the  formality  of 
inscription  on  these  lists  would  be  preceded  by  an  examina- 

*See  the  analysis  of  this  bill  in  the  Deutsche  Juristen  Zeitung,  1920, 
p.  385. 


128  THE  GERMAN  CONSTITUTION 

tion  whose  purpose  would  be  to  see  if  the  conditions  provided 
by  the  Constitution  for  the  inauguration  of  a  popular  initia- 
tive have  been  complied  with.  This  provision  has  for  its 
purpose  the  elimination  of  initiatives  doomed  obviously  to 
failure.  This  would  permit  the  public  authorities,  once  the 
principle  of  the  initiative  is  accepted,  to  announce  such  a  pos- 
sibility officially  in  order  to  give  the  people  a  chance  to  take 
a  position  on  the  matter. 

A  demand  that  an  initiative  be  admitted  must  be  made  by 
at  least  five  thousand  electors.  When  the  proposal  for  the 
inauguration  of  an  initiative  has  been  admitted,  all  the  elec- 
tors can  vote  on  it  within  a  period,  which  usually  is  about 
thirty  days.  This  voting  is  done  under  the  auspices  of  the 
district  authorities,  to  whom  the  task  of  gathering  and  count- 
ing the  signatures  is  thus  confided  as  one  of  their  official 
duties. 

If  the  signatures  thus  gathered  are  sufficient  in  number,  the 
referendum,  if  it  is  decided  upon,  proceeds  according  to  the 
provisions  indicated  above  and  which  are  analogous  to  the 
electoral  procedure. 


CHAPTER  IV 
PARLIAMENTARY    GOVERNMENT 

A  democracy,  above  all  one  comprising  seventy  million  in- 
habitants, no  matter  to  what  great  extent  it  makes  use  of 
direct  government,  cannot  nevertheless  govern  itself  that  way. 
It  must  furnish  itself  with  representatives  charged  with  the 
direction  of  public  affairs.  Democracy  presupposes  by  defi- 
nition a  representative  government. 

But  this  government  may  assume  different  aspects,  and  the 
republic — for  we  have  seen  that  the  republic  is  the  normal 
form  of  democratic  government — may  be  organized  according 
to  three  different  principles. 

There  may  be  noted,  according  to  the  type,  the  presidential 
republic,  such  as  the  United  States  of  America,  which  tends 
to  realize  a  separation  of  powers  as  complete  as  possible  and 
in  which  the  President  elected  by  the  people  and  his  ministers 
or  secretaries  nominated  by  the  President  are  never  respon- 
sible to  the  Parliament.  Then  there  is  the  collegiate  republic, 
such  as  Switzerland  and  the  Hanseatic  Cities,  in  which  the 
President  is  replaced  by  a  college  which  is,  by  the  side  of  the 
Parliament,  an  organ  of  popular  sovereignty  and  which  exer- 
cises executive  powers.  This  college  is  elected  by  the  popu- 
lar representative  body  and  depends  on  it.  Finally  there  is 
the  parliamentary  republic,  such  as  exists  in  France. 

We  know  what  makes  up  parliamentary  rule.  Here  also 
legislative  power  and  executive  power  are  separated  and  are 
to  a  certain  measure  independent.  But  the  two  cannot  exer- 
cise their  functions  except  when  in  co-operation.  On  the  one 
hand,  a  certain  separation;  on  the  other,  a  certain  co-operation, 

129 


130  THE  GERMAN  CONSTITUTION 

co-operation  of  separate  and  independent  powers.  The  func- 
tioning of  this  system  is  insured  by  a  very  simple  mechanism. 
The  president  names  his  ministers  but  these  ministers  cannot 
begin  functioning  or  remain  as  such  until  they  have  obtained 
the  confidence  of  the  national  representative  body.  The  day 
that  these  ministers  lose  this  confidence  they  also  lose  their 
power.  Parliament  does  not  only  exercise  legislative  power 
therefore;  it  also  controls  executive  action.  The  chief  of 
states  names  his  ministers,  but  he  has  not  the  liberty  to  ap- 
point them.  He  must  take  those  designated  by  the  majority 
of  the  Chamber  and  reject  them  when  they  are  discarded  by 
the  Chamber. 

It  is  this  last  system  that  the  German  Constitution  has 
chosen.  One  may  express  surprise  thereat.  For  has  not  Ger- 
many been  the  classic  ground  for  pleasantries  over  "parlia- 
mentary cretinism"?  However,  it  has  chosen  parliamentar- 
ism. To  use  the  words  of  Member  of  the  Reichstag  Koch, 
"The  best  form  of  expression  of  democracy  is  parliamentar- 
ism. We  know  of  no  other  form  superior  to  it  and  we  have 
consequently  decided  to  make  parliamentarism  one  of  the 
foundations  of  the  new  edifice."  ^ 

Now,  the  mechanisms  which  the  Constitution  has  instituted, 
and  through  which  the  parliamentary  system  must  function, 
are — either  because  of  the  federal  form  of  the  State,  or  because 
of  new  ideas  which  it  has  introduced  in  its  creation — more 
numerous  and  more  complicated  than  in  most  other  countries. 
There  is  a  Reichstag,  a  President,  a  Cabinet,  a  Reichsrat,  and 
an  Economic  Council. 

This  last  will  be  studied  in  the  section  of  this  book  devoted 
to  the  Economic  Constitution.  In  the  present  chapter  we  shall 
study  the  other  organs,  and  shall  inquire  in  what  measure  they 
are  capable  of  insuring  and  do  insure  in  fact  to  Germany 
the  parliamentary  government  which  it  has  chosen. 

^Heilfron,  op.  cit.,  vol.  II,  p.  969. 


THE  REICHSTAG  131 


SECTION  I 

THE  REICHSTAG 

The  Reichstag  already  existed  under  the  regime  of  1871. 
But  its  powers  have  become  much  more  extensive,  for  it  is 
now  the  principal  representative  of  the  people,  from  whom 
sovereignty  is  derived.  It  is  the  principal  holder  of  popular 
sovereignty.  In  conformance  with  the  principles  of  parlia- 
mentary government,  it  enacts  laws  and  controls  the  Cabinet. 
The  regulations  that  determine  its  composition  and  which 
specify  its  powers  should,  therefore,  be  such  as  to  permit  it  to 
fulfil  completely  its  double  rôle. 

I. — THE  PRIVILEGES  AND  GUARANTEES  ACCORDED  TO  THE 
REICHSTAG. 

The  Reichstag,  charged  with  the  expression  of  the  will  of 
the  sovereign  people,  must  be  able  to  manifest  this  will  freely. 
Charged  with  the  control  of  the  Cabinet  it  must  be  protected 
against  all  possible  counterventions  of  the  latter.  To  this 
end  the  Constitution  contains  a  number  of  provisions  which 
give  to  the  Reichstag  as  a  body,  as  well  as  to  its  members 
as  individuals,  a  group  of  guarantees  designed  to  insure  for 
them  complete  independence  of  the  Cabinet. 

(1)  The  Reichstag  considered  as  a  whole  possesses  a  cer- 
tain number  of  privileges  and  guarantees,  much  more  numer- 
ous than  those  which  were  allowed  the  former  Reichstag  and 
analogous  to  those  which  in  general  the  parliaments  in  other 
free  countries  possess.  To  this  end  the  German  Constitution 
contains  several  special  features. 

It  is  known  that  the  right  of  political  assemblies  to  pass 
on  the  eligibility  of  their  members  and  the  regularity  of  their 
elections  constitutes  one  of  their  traditional  prerogatives,  one 
to  which  they  have  most  strongly  adhered.     For  they  have 


132  THE  GERMAN  CONSTITUTION 

seen  in  it  a  weapon  against  executive  power  to  be  used  in 
cases  where  the  latter  is  tempted  to  abuse  its  authority  and 
exercise  pressure  on  elections.  Also  most  of  the  democratic 
countries  confer  upon  their  Chambers  the  right  to  investigate 
the  election  of  their  members  and  to  decide  in  sovereign 
fashion  on  the  validity  of  these  elections.  Such  is  the  rule 
particularly  in  France;  such  was  the  rule  in  Germany  up  to 
1919.  But  the  new  Constitution  abandons  this  tradition  in 
the  sense  that  instead  of  leaving  election  disputes  to  the  Reichs- 
tag itself,  it  entrusts  them  to  a  special  tribunal  working  along- 
side of  the  Reichstag:  the  Electoral  Commission  (Wahl- 
priifungsgericht).  This  device,  however,  was  not  inspired  by 
any  desire  to  limit  the  rights  of  the  Reichstag.  It  was  dic- 
tated by  political  considerations.  The  former  Reichstag, 
when  it  verified  the  election  of  its  members,  instead  of  being 
inspired  solely  by  legal  motives  often  let  itself  be  guided  by 
political  considerations.  The  verification  of  elections  is  in 
itself  an  act  of  adjudication,  and  a  political  assembly  is  ill- 
prepared  to  fulfil  such  a  function.  That  is  why  the  English 
Parliament  has  already  entrusted  the  function  of  judging 
of  elections  of  its  members  to  a  separate  tribunal.  Without 
going  as  far  as  that,  the  new  German  Constitution  refers  con- 
testants to  a  mixed  tribunal,  in  which  there  are  both  mem- 
bers of  the  Reichstag,  and,  in  order  to  insure  the  impartial 
applications  of  legal  provisions,  judges  by  profession. 

The  Electoral  Commission  includes  members  of  the  Reichs- 
tag elected  to  it  by  the  whole  legislature,  as  well  as  members 
of  the  Administrative  Tribunal;  until  the  creation  of  this 
body  these  consist  of  members  of  the  National  Judicial  Court 
or  Reichsgericht.  These  are  nominated  by  the  President  of 
the  Reich  on  the  motion  of  the  President  of  the  Commission. 
In  order  to  become  operative  the  Electoral  Commission  must 
be  made  up  as  follows:  five  judges,  of  whom  three  must  be 
members  of  the  Reichstag,  and  two  magistrates.  The  pro- 
cedure is  presided  over  by  a  commissioner  named  by  the 


PRIVILEGES   AND   GUARANTEES  133 

President  of  the  Reich.  This  commissioner  is  particularly 
charged  with  investigation.  It  is  hoped  in  Germany  that  in 
consequence  of  the  introduction  of  proportional  representa- 
tion, election  contests  will  be  less  frequent  than  formerly 
and  that  adjudications  of  elections  by  this  Commission  will 
have  less  importance  for  the  parties  than  in  the  past. 

Once  elected  and  the  elections  verified,  can  the  Reichstag 
freely  meet  and  continue  just  as  it  pleases?  In  other  words, 
can  it  be  permanent,  that  is  to  say,  has  it  the  right  itself  to 
fix  the  date  and  the  duration  of  its  sessions?  A  double  dan- 
ger is  here  possible.  To  create  a  permanent  assembly,  would 
it  not  give  to  parliament  a  dangerous  preponderance?  But 
to  give  to  the  executive  power  unlimited  right  to  call,  adjourn, 
and  prorogue  parliament,  would  it  not  be  to  give  a  preroga- 
tive unacceptable  to  a  democratic  country  and  dangerous  to 
the  maintenance  of  its  institutions? 

Under  the  old  régime,  the  Reichstag  could  not  meet  or 
commence  its  work  without  having  been  convoked  by  the 
Emperor  and  expressly  opened  by  him.  However,  the  Con- 
stitution provided,  that  the  Reichstag  must  be  convoked  at 
least  once  every  year.  But  the  Emperor  had  the  right  to 
prorogue  the  assembly;  and  the  latter  had  not  the  right  to 
sit  and  continue  its  work  against  the  wish  of  the  Emperor. 
The  Emperor's  right  in  this  respect  had  but  one  limitation: 
the  prorogation  of  the  Reichstag  could  not  extend  beyond 
thirty  days  without  the  consent  of  the  Assembly,  and  it  could 
not  be  renewed  during  the  same  session.  On  the  other  hand, 
the  Reichstag  could  not  conclude  its  sessions  without  the 
consent  of  the  Emperor.    It  could  only  interrupt  its  meetings. 

The  new  Constitution  gives  the  Reichstag  the  right  to 
convoke  itself  and  to  meet  of  its  own  accord.  It  is  the  Reichs- 
tag which  decides  as  to  when  it  is  to  meet  and  how  long  its 
session  is  to  continue.  It  is  neither  convoked  nor  adjourned 
by  the  President  of  the  Reich.    According  to  the  Constitution 


134  THE  GERMAN  CONSTITUTION 

of  Weimar  the  Reichstag  meets  for  the  first  time  no  later 
than  the  thirtieth  day  after  elections.  In  addition  it  is  re- 
quired to  meet  every  year  on  the  first  Wednesday  in  November 
at  the  seat  of  the  government.  The  Reichstag  also  decides  for 
itself  the  conclusion  of  its  sessions  and  the  day  of  its  reassem- 
bling. However,  the  President  is  bound  in  two  cases  to  con- 
voke the  Reichstag  at  a  time  prior  to  the  annual  date  fixed 
by  the  Constitution,  or  to  the  date  fixed  by  the  Reichstag  for 
its  reassembling.  Such  situations  are  (a)  when  the  President 
of  the  Reich,  (b)  when  at  least  a  third  of  the  Members  of 
the  Reichstag,  demand  it. 

Independent  as  it  is  of  the  Cabinet,  the  Reichstag  must  be 
assured  the  power  freely  to  deliberate  without  fear  of  riots 
and  insurrections.  Most  governments  have  no  special  legisla- 
tion in  regard  to  this.  They  leave  to  the  assembly,  to  which 
a  special  guard  is  assigned,  the  right  to  protect  itself.  Events, 
however,  have  demonstrated  that  in  Berlin  revolutionaries 
either  of  the  extreme  Left  or  of  the  extreme  Right  become, 
when  they  so  desire,  "masters  of  the  street."  More  efficacious 
measures  had  to  be  provided  than  prevail  elsewhere.  Accord- 
ingly a  law  was  passed  by  the  National  Assembly,  May  8, 
1920,  "for  the  protection  of  the  Palace  of  the  Reichstag  and 
of  the  Landtag  (State  Assembly)."^  This  law  draws  about 
these  palaces  a  perimeter  of  protection,  within  the  limits  of 
which  no  armed  troops  may  penetrate,  and  it  also  provides 
different  measures  to  make  these  palaces  an  adequate  shelter 
against  any  couj)  de  main  such  as  may  come  at  any  time  from 
revolutionists. 

2.  The  Members  of  the  Reichstag  as  individuals  enjoy,  like 
the  Reichstag  as  a  whole,  privileges  and  guarantees  such  as  are 
necessary  to  insure  their  independence.  The  situation  ac- 
corded them  in  this  respect  is  very  analogous  to  that  which 

^  Reichsgesetzblutt,  1920,  p.  909. 


THE  RULES  OF  THE  REICHSTAG  135 

other  democratic  countries  assure  the  members  of  their  popular 
legislatures.  They  receive  compensation.^  They  are  "irre- 
sponsible and  inviolable," 

2. — THE   RULES   OF   THE   REICHSTAG. 

Protected  against  the  Cabinet,  against  insurrections,  and 
against  individuals  who  have  designs  on  their  independence, 
the  deputies  of  the  Reichstag  can  and  must  organize  them- 
selves in  such  a  way  as  to  assure  for  their  labours  maximum 
efficiency.  It  is  imperative  that  the  majority  shall  be  able 
to  impose  its  will  without  thereby  sacrificing  the  rights  of  the 
minority.  To  this  effect  Article  26  provides,  ''The  National 
Assembly  chooses  its  President,  Vice-President,  and  its  Sec- 
retaries.   It  regulates  its  own  procedure." 

The  National  Assembly  adopted  the  procedure  of  the  old 
Reichstag  and  the  new  Reichstag  seems  to  have  continued  it 
also. 

Meanwhile  a  change  of  considerable  importance  has  been 
adopted  by  the  National  Assembly.  Theretofore  the  members 
of  the  Reichstag  were  divided  by  lot  into  bureaus,  and  these 
elected  the  committees.  There  are  no  longer  any  bureaus; 
and  the  essential  machinery  on  which  the  functioning  of  the 
Assembly  depends  is  the  group  or  fraction,  each  of  which 
consists  of  all  the  members  of  the  Reichstag  belonging  to  the 
same  party. 

According  to  the  procedure  of  the  Reichstag,  no  party  can 
constitute  such  a  fraction  if  it  docs  not  have  at  least  fifteen 

'■  Bismarck  was  always  against  the  granting  of  salaries  to  members  of 
the  Reichstag.  He  hoped  thereby  to  prevent  making  of  politics  a 
career.  The  members  of  the  Reichstag  since  1906  have  been  receiving 
compensation  which,  at  first  fixed  at  3,000  marks  a  year,  was  increased 
in  1918  to  5,000.  National  Assembly  members  were  paid  1,000  marks 
a  month.  The  new  Reichstag  in  one  of  its  first  sessions  decided  (1) 
that  its  members  are  to  receive  1,500  marks  a  month;  (2)  that  those 
of  its  members  who,  in  the  intervals  of  the  Reichstag's  sitting,  worked 
on  committees,  should  receive  50  marks  a  day.  In  addition,  members 
of  the  Reichstag  have  the  right  to  travel  free  on  all  railroads  of  the 
Reich. 


136  THE  GERMAN  CONSTITUTION 

members.  To-day  it  is  these  groups  that  nominate  the  various 
committees  of  the  Assembly  on  the  basis  of  proportional  rep- 
resentation.^ The  group  plays  a  rôle  in  Germany  much 
more  important  than,  for  example,  in  France,  because  of  the 
strict  party  discipline  that  prevails  in  these  groups.  For  every 
new  question  brought  before  the  Reichstag  each  group  assem- 
bles its  members,  who  discuss  among  themselves  the  attitude 
to  take  and  the  way  in  which  the  group  as  a  whole  is  to 
vote.  When  the  question  is  most  important  there  are  held 
interfractional  meetings.  At  these  meetings  are  called  together 
either  all  the  members  of  certain  groups,  or  only  trusted  men 
or  the  chiefs  of  these  groups.  Sometimes  two  or  more  related 
groups  deliberate  in  common;  sometimes  they  are  the  groups 
of  the  majority  parties.  Thus,  either  in  single  groups  or  in 
common  the  various  political  factions  decide  in  advance  their 
line  of  actions;  and  when  the  matter  comes  up  for  delibera- 
tion in  the  Assembly,  everything  is  already  decided.  The 
public  meetings  of  the  Assembly  are  only  a  kind  of  show,  in 
the  course  of  which  a  speaker  for  each  party  generally  mounts 
the  tribune  to  acquaint  public  opinion  with  \;he  motives  that 
have  determined  his  group  in  taking  such  and  such  a  stand. 
A  certain  amount  of  dramatic  interest  is  thereby  lost,  but 
perhaps  the  element  of  surprise  is  replaced  by  more  thoroughly 
considered  and  riper  decision. 

The  vote  is  then  proceeded  to.  Voting  by  proxy  is  not  rec- 
ognized. Only  those  present  can  take  part  in  the  vote,  which 
is  theoretically  taken  "sitting"  and  "rising." 

In  case  of  doubt  all  the  members  are  invited  to  leave  the 
hall  and  then  to  reenter,  those  voting  "yes"  coming  in  by  one 
door,  those  voting  "no"  by  another.    There  can  also  be  a  vote 

^ There  were  formerly  six  important  permanent  committees:  on 
procedure,  petitions,  commerce  and  industry,  finance  and  customs,  jus- 
tice, and  budget.  We  shall  see  that  the  Constitution  has  added  to  this 
list  a  committee  on  foreign  affairs,  and  a  committee  on  the  protection 
of  the  rights  of  popular  representation  when  the  Reichstag  is  not  meet- 
ing. It  goes  without  saying  that  the  Reichstag  may  name  special 
committees  for  such  and  such  functions  decided  upon. 


DURATION  OF  POWERS  OF  REICHSTAG    137 

by  name,  if  fifty  members  demand  it  and  if  the  Assembly  so 
decides.  In  this  case  ballots  of  different  colours  are  distributed 
among  the  members.  These  ballots  bear  the  names  of  the 
deputies  and  one  of  the  following:  "yes,"  "no,"  or  "I  abstain." 
At  the  moment  of  the  vote  the  leaders  of  the  various  groups 
hold  up  their  ballots  above  their  heads,  this  movement  being 
immediately  followed  by  all  the  members  of  their  groups. 
Then  the  ballots  are  given  by  those  voting  to  the  Secretaries, 
who  place  them  in  the  ballot  boxes.  A  supervision  is  main- 
tained to  prevent  those  present  from  voting  for  absent  mem- 
bers. This  procedure  presents  the  triple  advantage  of  giving 
to  the  abstaining  vote  its  precise  significance,  of  maintaining 
strict  discipline  within  the  groups  and  of  preventing  absent 
members  from  voting. 

3. — THE  DURATION  OP  THE  POWERS  OP  THE  REICHSTAG. 

The  question  of  the  term  for  which  the  members  of  politi- 
cal assemblies  should  be  elected  is  always  a  delicate  one.  It 
has  given  rise  in  Germany  to  much  lively  discussion  in  com- 
mittee as  well  as  in  plenary  sessions. 

Under  the  Empire,  the  Reichstag  was  at  first  elected  for 
three  years.  Since  1888  it  has  been  elected  for  five  years. 
Should  this  term  be  retained? 

On  the  Left  the  Independents  considered  that  the  motive 
which  had  prompted  the  change  in  1888,  that  is,  the  fear  of 
too  frequent  elections,  did  not  deserve  consideration.  They 
held  that  it  was  necessary  to  give  the  German  people  quickly 
the  political  education  it  lacks,  and  that  frequent  elections 
are  the  best  means  to  employ.  They  declared  that  in  a  true 
democracy  the  people  should  be  given  the  chance  to  make 
themselves  heard  as  often  as  possible. 

The  Right  replied  that  in  all  parliaments  the  first  year  that 
follows  general  elections  is,  so  to  say,  lost  because  of  the 
necessary  labour  of  preparation;  and  because  the  old  and  the 


138  THE  GERMAN  CONSTITUTION 

new  members  must  become  accustomed  to  working  together 
before  their  efforts  achieve  appreciable  efficiency. 

Prcuss  added  that  the  question  to  find  out  was  whether 
parliamentarism  was  wanted  or  not.  A  parliament,  said  he, 
is  inefficient  to  the  extent  that  the  term  for  which  it  is  elected 
is  short.  In  America  the  House  of  Representatives  is,  it  is 
true,  elected  for  two  years,  but  it  is  not  the  centre  of  power 
and  of  parliamentary  authority.  The  Senate  has  more  au- 
thority than  the  House,  and  it  is  elected  for  six  years.  In 
addition  there  is  no  dissolution  of  parliament  possible  in 
America.  If  a  period  of  two  years  is  fixed  and  if  in  addition 
the  right  of  dissolution  admitted,  which  is  in  itself  already  a 
remedy  against  too  protracted  a  term,  the  development  of  the 
parliamentary  system  would  be  rendered  thereby  extremely 
difficult. 

Finally  on  the  third  reading  of  a  bill  the  Assembly  arrived 
at  a  medium  term.  The  duration  of  power  for  members  of 
the  Reichstag  was  fixed  at  four  years. 

4. — THE   POWERS    OF   THE   REICHSTAG. 

The  Reichstag  is  the  principal  holder  of  popular  sover- 
eignty ;  as  such  it  is  the  most  important  organ  of  the  national 
representation.  Its  activity  is  manifested  under  different 
forms  and,  compared  to  the  old  Constitution,  its  limits  have 
been  greatly  broadened.  Although  it  is  above  all  a  legislative 
organ,  it  exercises  also  an  unceasing  action  on  the  executive 
power. 

I. — POWERS  OF  THE  REICHSTAG  AS  PRINCIPAL   HOLDER 
OF  SOVEREIGNTY. 

The  Reichstag  being  the  principal  representative  of  the 
sovereign  people,  it  naturally  falls  to  it  to  speak  whenever  it 
is  necessary  in  the  national  or  international  life  of  the  state 
to  translate  or  express  the  will  of  the  people.  That  is  the 
rôle  which  has  devolved  upon  parliament  in  all  the  democratic 


LEGISLATIVE  POWERS  139 

countries,  and  it  is  also  the  mission  confided  to  the  Reichstag 
by  the  German  Constitution.  The  situations  in  which  this 
Assembly  acts  as  spokesman  for  the  people  are  of  three  kinds: 

1.  The  granting  of  amnesty.  Amnesty  is  a  measure  of  a 
general  character  whereby  the  sovereign,  with  the  object  of 
general  pacification,  declares  such  and  such  crimes  legally 
expiated.  In  the  German  Constitution  amnesty  has  to  be 
declared  in  the  form  of  a  law.  The  ordinary  procedure  for 
the  enactment  of  law  applies  here. 

2.  Declaration  of  war  and  the  conclusion  of  peace.  These 
proclamations,  in  the  same  way,  must  be  made  in  the  forms  of 
laws. 

3.  Treaties  of  alliance  and  international  treaties.  Each 
of  these  is  theoretically  concluded  by  the  President  of  the 
Reich;  but  when  these  treaties  touch  questions  which  are 
regulated  or  can  only  be  regulated  by  a  law  of  the  Reich,  such 
settlements  are  not  valid  except  with  the  consent  of  the  Na- 
tional Assembly.  (Article  45.)  This  hypothesis  differs, 
therefore,  from  the  first  two  just  examined.  In  those  cases 
there  was  required  a  law,  that  is  to  say,  the  Reichsrat  had  the 
right  of  protest,  and  the  President  could  only  prepare  and 
execute  the  decision  of  the  Reichstag,  to  the  same  extent  that 
he  is  compelled  to  prepare  other  laws  of  the  Reich.  In  the 
cases  of  treaties,  however,  what  is  required  is  a  meeting  of 
the  wills  of  both  the  Reichstag  and  the  President.  This  agree- 
ment is  required  even  for  the  international  validity  of  the 
treaty,  but  it  is  self-sufiicient,  and  the  Reichsrat  would  prob- 
ably not  have  the  right  to  protest  against  such  a  conclu- 
sion.^ 

II. — LEGISLATIVE    POWERS. 

In   contrast   to   the   terras   of   the   Constitution   of    1871, 

which  divided  the  right  to  legislate  between  the  Bundesrat 

'There  are  thus  three  kinds  of  treaties:  Those  made  by  a  law  of 
the  Reich,  these  made  by  agreement  between  the  President  and  the 
Reichstag,  and  those  made  by  the  President  alone. 


140  THE  GERMAN  CONSTITUTION 

and  the  Reichstag  but  gave  the  preponderance  to  the  former, 
the  new  Constitution  gives  to  the  Reichstag  the  principal  rôle 
in  legislative  work.  The  right  to  legislate  is  expressly  placed 
in  its  hands.  "National  laws  are  enacted  by  the  National 
Assembly"  (Article  68).  But  this  fundamental  right  of  the 
Reichstag  is  limited  by  important  powers  granted  to  the 
Reichsrat,  to  the  President  and  to  the  people. 

The  principal  co-operator  with  the  Reichstag,  from  the 
point  of  view  of  legislation,  is  the  Reichsrat.  The  Reich  being, 
at  least  theoretically,  a  federal  state,  the  Constitution  grants 
to  the  Reichsrat,  which  "represents  the  German  states  in  the 
legislation  and  administration  of  the  Reich,"  the  right  of 
important  co-operation  in  legislative  matters.  But  this  right 
is  not  as  extensive  as  that  w^hich  the  old  Bundesrat  had. 

It  consists  first  of  all  in  this,  that  no  bill  can  be  submitted 
to  the  Reichstag  unless  it  has  been  previously  accepted  by  the 
Reichsrat.  However,  this  provision  does  not  constitute,  as 
formerly,  an  absolute  obstacle.  When  the  Reichsrat  disap- 
proves of  a  bill  which  the  Cabinet  has  submitted  to  it,  this 
project  may  be,  without  the  consent  of  the  Reichsrat,  never- 
theless sent  on  to  the  Reichstag.  The  Cabinet  is  in  such  a 
case  only  obliged  to  set  forth  to  the  Reichstag,  in  presenting 
this  bill,  the  dissent  of  the  Reichsrat  (Article  69). 

The  co-operation  of  the  Reichsrat  is  manifested  also  in  its 
right  oj  protest  against  the  laws  enacted  by  the  Reichstag. 
These  laws  must  in  theory  be  enacted  with  the  express  or 
tacit  approval  of  the  Reichsrat,  but  this  provision  is  not  abso- 
lute. If,  in  effect,  after  the  protest  of  the  Reichsrat,  no  accord 
is  reached  between  this  body  and  the  Reichstag,  it  devolves 
upon  the  President  of  the  Reich  to  decide  whether  the  project 
of  law  will  be  abandoned  by  him,  or  whether  he  will  resort  to  a 
referendum  against  the  decision  taken  by  the  Reichsrat.  If 
this  bill  gains  the  support  at  the  Reichstag  of  a  majority  of 
two-thirds  the  President  has  then,  in  spite  of  the  protest  of  the 
Reichsrat,  the  right  to  promulgate  and  to  publish  the  law, 


LEGISLATIVE  POWERS  141 

without  any  further  vote  on  it  by  the  Reichstag.  But  he  may 
also,  instead  of  proceeding  to  this  promulgation,  order  a  refer- 
endum, if  he  does  not  want  to  take  upon  himself  the  respon- 
sibility of  deciding  this  conflict  of  the  Reichstag  and  the 
Reichsrat. 

There  are  thus  two  ways  of  breaking  the  opposition  of  the 
Reichsrat:  either  the  referendum,  or  else  a  two-thirds  vote 
for  the  law  on  the  part  of  the  Reichstag  and  joined  to  it  the 
approval  of  the  President. 

On  the  other  hand,  when  this  majority  of  two-thirds  cannot 
be  assembled  in  the  Reichstag,  there  are  two  ways  for  the 
opposition  in  the  Reichsrat  to  become  effective.  First,  the 
President  may  remain  passive  after  the  protest  of  the  Reichs- 
rat, that  is  to  say,  he  may  not  order  the  referendum.  The 
co-operation  of  the  Reichsrat  and  of  the  President  in  such  case 
weighs  more  than  the  decision  of  the  Reichstag  which  has 
not  been  able  to  rally  a  majority  of  two-thirds  in  its  favour. 
The  other  way  in  which  a  protest  of  the  Reichsrat  can  become 
effective  is  for  the  referendum  to  support  the  objection  of  the 
Reichsrat  and  reject  the  project  voted  by  the  Reichstag. 

The  power  of  the  Reichstag  to  legislate  is,  in  the  second 
place,  limited  by  powers  assigned  to  the  President  in  certain 
matters.  He  has  the  right  to  veto  any  law  passed  by  the 
Reichstag,  in  the  sense  that,  according  to  Article  73,  he  is 
not  obliged  to  promulgate  the  laws  voted,  and  may  within  a 
month  submit  it  to  a  referendum.  If  the  President  is  con- 
vinced that  a  bill  voted  by  the  Reichstag  with  the  consent 
of  the  Reichsrat  is  against  the  welfare  of  the  people;  or  if 
there  are  serious  objection  lodged  against  it  of  another  char- 
acter; or  if  he  believes  that  the  law  does  not  correspond  with 
the  conceptions  held  by  the  people,  his  situation  as  an  inde- 
pendent organ  of  popular  sovereignty  gives  him  the  right  and 
imposes  on  him  the  duty  of  submitting  this  project  to  a  refer- 
endum. In  addition,  the  Constitution  (Article  72)  authorizes 
him  to  disregard  a  demand  on  the  part  of  a  third  of  the  Reichs- 


142  THE  GERMAN  CONSTITUTION 

tag  that  the  promulgation  of  a  hiw  passed  by  the  Reichstag 
and  approved  by  the  Reichsrat  be  deferred.  He  can,  there- 
fore, promulgate  the  law  voted  and  give  it  operative  power 
when  the  Reichstag  and  the  Reichsrat  declare  it  to  be  urgent. 

In  the  third  place  the  legislative  power  of  the  Reichstag 
is  limited  by  the  right  reserved  by  the  people  itself  to  decide, 
and  in  certain  cases  directly  on  this  or  that  project  of  law. 
Such  are  the  cases  we  have  described  as  touching  the  Consti- 
tutional provisions  for  initiative  and  referendum. 

We  must  finally  note,  as  the  fourth  legislative  factor,  the 
Economic  Council,  whose  powers,  it  is  true,  cannot  be  con- 
sidered as  constituting  a  limitation  of  the  Reichstag's  powers, 
but  which  may  nevertheless  be  called  in  to  co-operate  with  the 
latter  in  the  preparation  of  laws. 

Such  are  the  organs  that  participate  in  the  legislative  work. 
We  must  now  see  in  what  manner  they  function  and  how  a 
law  is  passed  through  this  intricate  mechanism. 

The  initiation  of  a  law  can  take  place  under  any  of  the 
following  conditions: 

1.  The  Government  of  the  Reich,  that  is  to  say,  the  Cabi- 
net, has  in  the  first  instance,  the  initiation  of  laws.  In  theory 
the  Cabinet  is  supposed  to  proceed  with  the  consent  of  the 
Reichsrat;  but  in  case  this  agreement  is  refused,  the  Cabinet 
may  nevertheless  submit  the  bill  to  the  Reichstag  together 
with  a  statement  of  its  attitude.    (Article  69.) 

2.  Members  of  the  Reichstag  may  also  introduce  bills. 
(Article  68.) 

3.  The  Reichsrat  also  has  the  right  of  initiation.  In 
theory  it  is  supposed  to  act  on  a  bill  in  harmony  with  the 
Cabinet.  But  if  the  latter  refuses  its  consent  to  a  bill,  the 
Reichsrat  may  still  submit  it  to  the  Reichstag  together  with 
a  statement  of  its  point  of  view  on  it.     (Article  69.) 

4.  The  people  themselves  may  initiate  a  proposal  for  a 
law.     (Article  73.) 

5.  In  matters  of  social  and  economic  policy,  finally,  the 


J 


LEGISLATIVE  POWERS  143 

National  Economie  Council  has  also  the  right  to  propose 
bills;  but  here,  too,  the  agreement  with  these  bills  on  the  part 
of  the  Cabinet  is  required.  If,  however,  the  Cabinet  refuses 
its  consent  to  the  bill,  it  must  nevertheless  present  the  propo- 
sition to  the  Reichstag  at  the  same  time  presenting  its  opinion. 
The  law  being  proposed  how  is  it  voted  on  and  accepted? 
Here,  again,  several  different  kinds  of  situations  must  be 
distinguished: 

1.  The  normal  procedure  is  the  vote  on  the  bill  by  the 
Reichstag  in  agreement  with  the  Reichsrat.  The  bill  may 
be  presented  by  the  Cabinet,  duly  passed  on  by  the  Reichs- 
rat in  agreement  and  without  change  and  accepted  by  the 
Reichstag  as  it  stands.  Or  changes  by  the  Reichsrat  may  be 
approved  by  the  Reichstag.  Or  the  Reichsrat  may  accept 
without  a  contest  the  changes  voted  by  the  Reichstag.  Or, 
after  a  protest  by  the  Reichsrat  against  a  bill  voted  by  the 
Reichstag,  an  agreement  may  be  reached  by  the  two  assem- 
blies after  a  reconsideration  of  the  bill  by  the  Reichstag. 

2.  If  an  agreement  cannot  be  reached  between  the  Reichs- 
tag and  the  Reichsrat,  that  is  to  say,  if  the  Reichsrat  having 
raised  objection  to  a  bill  voted  on  by  the  Reichstag,  a  recon- 
sideration by  the  latter  has  not  brought  about  an  agreement 
between  the  two  bodies  on  the  bill,  the  Cabinet  may  then 
follow  another  course.  The  President  may  decide  that  this 
agreement  on  the  bill  between  the  Reichstag  and  the  Reichs- 
rat being  impossible,  matters  rest  where  they  are;  then  the 
law  does  not  become  operative.  If  this  solution  does  not  com- 
mend itself  to  him,  he  may  prescribe  a  referendum  on  the 
question  that  forms  the  conflict  of  opinion  between  the  two 
assemblies  and  the  law  becomes  operative  when  the  referen- 
dum sanctions  the  decision  of  the  Reichstag. 

3.  If,  in  the  proceeding  in  case  of  a  difference  of  opinion  be- 
tween the  Reichstag  and  the  Reichsrat,  the  Reichstag  persists, 
after  the  protest  of  the  Reichsrat,  in  its  first  decision  and 
supports  it  with  a  majority  of  at  least  two-thirds  of  those 


144  THE  GERMAN  CONSTITUTION 

voting,  the  President  has  the  choice  cither  of  passing  over  the 
protest  of  the  Reichsrat  and  promulgating  the  law,  or  else  he 
may  order  a  referendum.  His  decision  must  be  made  within 
three  months  after  the  decision  of  the  Reichstag.  In  this  case 
the  law  may  become  operative,  either  by  the  vote  of  the 
Reichstag  together  with  the  President's  favorable  decision,  or 
by  the  vote  of  the  Reichstag  together  with  the  sanction  by  the 
referendum. 

4.  The  President  may,  in  the  case  of  a  bill  passed  by  both 
the  Reichstag  and  the  Reichsrat  in  agreement,  use  his  right 
of  veto;  that  is  to  say,  he  need  not  promulgate  the  law  but 
must  refer  it  to  a  referendum.  In  that  case  the  law  does  not 
become  operative  unless  the  referendum  supports  the  vote  of 
the  Reichstag.  If  the  referendum  pronounces  against  it  the 
law  is  definitely  rejected.  The  Constitution  does  not  say 
whether  the  President  may,  in  such  a  case,  propose  a  change 
in  the  bill  and  submit  this  change  to  another  referendum. 
We  must  consequently  conclude  that  he  cannot  do  so. 

5.  If  one-twentieth  of  the  electors  demand  that  a  law 
already  passed  by  the  Reichstag  shall  be  submitted  to  a 
referendum;  and  if,  at  the  same  time,  at  the  demand  of  one- 
third  of  the  Members  of  the  Reichstag  the  promulgation  of 
that  law  has  been  deferred,  the  latter  cannot  go  into  effect 
except  after  having  been  approved  by  a  referendum.  If  the 
referendum  pronounces  against  the  bill,  the  latter  is  rejected. 
But  this  possibility  does  not  exist  in  the  case  where  both  the 
Reichsrat  and  the  Reichstag  have  declared  a  law  to  be  urgent. 
The  President  may  in  such  a  case  promulgate  the  law  in 
spite  of  the  demand  for  its  postponement. 

6.  There  remains  finally  the  exceptional  case  in  which 
a  popular  initiative  by  one-tenth  of  the  electors  proposes  the 
project  of  a  law.  In  such  a  case  the  law,  if  it  is  accepted  by 
referendum,  becomes  operative,  whether  the  bill  has  been 
passed  without  change  by  the  Reichstag,  or,  with  changes  by 
it,  or  even  in  spite  of  the  Reichstag's  rejection. 


LEGISLATIVE  POWERS  145 

It  is  thus  seen  that  a  referendum  is  never  resorted  to,  unless 
the  Reichstag  has  first  taken  a  vote  on  the  subject.  The 
decisions  of  the  people  appear,  therefore,  as  a  kind  of  control 
over,  and  check  on,  the  Reichstag's  decisions. 

The  procedure  just  described  is  that  followed  for  all  ordi- 
nary laws.^ 

In  theory  it  holds  also  for  constitutional  laws,  that  is,  laws 
which,  according  to  the  Constitution,  must  be  enacted  in  the 
form  of  constitutional  laws;  but  there  are  certain  modifications 
in  the  procedure  in  such  cases. 

Under  the  old  Constitution,  changes  in  it  could  be  brought 
about  by  the  same  means  as  ordinary  laws.  The  new  Con- 
stitution places  constitutional  law  under  special  protection, 
and  demands  that  a  certain  fixed  majority  be  obtained  for 
any  change  in  the  Constitution.  Decisions  of  the  Reichstag 
tending  to  such  a  change  are  not  valid  unless  two-thirds  of 
the  legal  number  of  members  are  present  and  of  those  present 
at  least  two-thirds  vote  for  such  change.  In  the  same  way 
decisions  of  the  Reichsrat  tending  to  a  change  of  the  Consti- 
tution must  obtain  a  majority  of  two-thirds  of  all  the  votes 
cast  in  their  favour. 

The  Constitution  contains  a  special  provision  in  case  a  con- 
stitutional change  is  to  be  realized  on  the  initiative  of  the 
people.  In  such  a  case,  at  least  one-half  of  the  electors  must 
approve  of  the  change.  This  particular  majority  was  intro- 
duced as  a  condition  for  the  following  reason;  the  situation 
had  to  be  met  in  which  the  Reichstag  rejects  a  constitutional 
change  proposed  by  popular  initiative.  Against  such  a  vote 
on  the  part  of  the  Reichstag,  which  may  not  be  in  favour  of 

*It  must  be  noted  that,  contrary  to  the  practice  in  most  parlia- 
mentary countries,  there  is  no  distinction  made  between  ordinary  lawa 
and  fiscal  laws.  The  latter,  particularly  the  budget,  audit  laws,  loans, 
are  subject  to  the  same  regulation  as  the  former.  This  is  explained 
by  the  fact  that,  unlike  most  other  parliamentary  countries,  Germany 
does  not  practice,  properly  speaking,  the  two-chamber  system. 


146  THE  GERMAN  CONSTITUTION 

the  constitutional  change  proposed,  the  decision  of  the  people 
in  favour  of  the  change,  to  become  operative  must  be  supported 
by  at  least  half  of  the  people.  Where,  however,  the  Reichstag 
votes  in  favour  of  a  constitutional  change  it  is  enough  for  the 
referendum  to  secure  a  majority  of  those  voting,  provided  that 
a  majority  of  the  electors  have  participated  in  the  vote. 
Consequently  if  the  Reichstag  has  voted  a  constitutional 
amendment  by  a  vote  of  two-thirds  and  if  this  amendment 
has  been  submitted  by  the  President  to  a  referendum,  it  is 
suflBcient  to  nullify  the  favourable  vote  by  the  Reichstag,  if 
half  of  the  electors  of  the  Reich  participate  in  the  vote  and 
the  majority  of  those  voting  pronounce  against  the  amend- 
ment. In  other  words,  to  effect  a  constitutional  amendment 
by  means  of  a  referendum  a  simple  majority  is  sufficient  if 
the  Reichstag  has  voted  for  such  an  amendment;  but  if  the 
Reichstag's  approval  is  to  be  nullified  in  such  a  case  a  speci- 
fied majority  is  required. 

Another  provision  of  the  Constitution  deals  with  the  case 
where  a  divergence  of  opinion  arises  between  the  Reichstag 
and  the  Reichsrat  on  a  constitutional  matter.  In  general 
when  the  Reichstag,  over  the  protest  of  the  Reichsrat,  main- 
tains its  stand  by  a  majority  of  two-thirds,  the  President  has 
the  option  either  of  promulgating  the  law  voted  by  the 
Reichstag  over  the  protest  of  the  Reichsrat,  or  of  prescrib- 
ing a  referendum.  In  the  matter  of  a  constitutional  amend- 
ment, to  strengthen  the  position  of  the  Reichsrat,  the  Presi- 
dent's choice  is  limited.  In  such  a  case,  if  the  Reichsrat 
demands  a  referendum  the  President  cannot  promulgate  the 
law,  even  though  it  has  been  passed  by  two-thirds  of  the 
Reichstag.  This  demand  must  take  place  within  two  weeks 
of  the  passage  of  the  bill  by  the  Reichstag.  If  within  that 
time,  the  Reichsrat  has  not  made  use  of  its  right  just  de- 
scribed, the  President  recovers  his  right  to  choose  between 
promulgation  and  referendum. 


POWER  OF  CONTROL  147 

III. — POWER    OF    CONTROL. 

In  the  parliamentary  system,  the  parliament  exercises  an 
incessant  control  over  the  acts  of  the  Cabinet,  such  control 
consisting  of  the  responsibility  of  the  ministers.  How  is  this 
organized  in  Germany  and  in  what  manner  is  it  actually 
exercised? 

It  must  be  noted  first  that  the  Constitution  does  not  give 
control  over  the  Cabinet  to  any  but  the  Reichstag.  It  is  to 
the  Reichstag  only  that  the  Ministers  are  politically  respon- 
sible. The  other  assemblies  that  the  Constitution  has  created, 
in  particular,  the  Reichsrat,  have  in  this  respect  no  power. 
On  the  other  hand,  the  confidence  of  the  Reichstag  is  abso- 
lutely indispensable  to  the  Cabinet.  If  the  Reichstag  with- 
draws its  confidence  in  a  Ministry  or  in  a  Minister,  especially 
if  the  Reichstag  expresses  its  lack  of  confidence,  the  Ministry 
or  the  Minister  must  resign.  (Article  54.)  To  give  to  the  vote 
of  the  National  Assembly  a  complete  guarantee  of  execution 
the  Constitution  provides  that  the  Reichstag  may  prosecute 
the  President  and  the  Cabinet  before  the  National  Judicial 
Court  and  demand  that  the  people  pronounce  on  the  removal 
of  the  President.     (Article  43.) 

The  means  by  which  the  Reichstag  exercises  its  control  over 
the  Cabinet  are,  with  some  minor  differences  in  procedure,  the 
same  in  Germany  as  in  most  parliamentary  governments. 

The  Reichstag  may,  first,  demand  the  presence  of  the 
Chancellor  or  the  Ministers  at  its  meetings,  whether  in  com- 
mittee or  in  full  session.  The  Chancellor,  the  Ministers,  and 
the  Commissioners  have  the  right  to  be  present  at  all  the 
meetings  of  the  Reichstag  and  its  committees.  The  represen- 
tatives of  the  Cabinet  have  the  right  to  be  heard  on  their  own 
demand  at  the  deliberations  of  the  Reichstag  even  contrary  to 
the  order  of  the  day.  They  are  subject  to  the  disciplinary 
power  of  the  President. 

The  members  of  the  Reichstag  may  address  questions  to 


148  THE  GERMAN  CONSTITUTION 

the  Cabinet.  The  question  must  be  addressed  in  writing,  and 
if  the  author  of  it  agrees,  the  Cabinet  may  respond  to  it  in 
writing.  On  the  other  hand,  it  must  not  be  taken  up  in  public 
session  of  the  Reichstag  except  on  a  Tuesday  or  Friday  at  the 
head  of  the  order  of  business.  It  is  then  read  by  its  author. 
The  Minister  interrogated  or  some  one  commissioned  by  the 
Cabinet  replies.  But  no  discussion  or  motion  whatsoever  may 
thereupon  at  once  result  on  this  reply.  Only  the  author  of 
the  question  may  take  the  floor  after  the  Minister,  and  then 
only  to  complete  or  to  rectify  his  question.  There  is  natu- 
rally no  vote  taken  immediately  after  the  question  and  it  is 
not  permitted  to  transform  a  question  into  an  interpellation, 
as  it  may  be  done,  for  instance,  in  France. 

The  parliamentary  question  seems  to  play  a  much  smaller 
rôle  in  Germany  than  in  England  or  even  in  France,  if  one 
compares  the  German  procedure  on  the  written  question  with 
that  of  the  French.  During  the  first  six  months  of  its  exist- 
ence, the  National  Assembly  addressed  about  280  questions 
to  the  Cabinet,  most  of  them  in  open  session.  Most  of  the 
Tuesday  and  Friday  sessions  cocomence  with  a  series  of 
questions;  some  of  them  with  as  many  as  fifteen  to  twenty 
questions. 

The  Constitution  does  not  say  one  word  more  on  interpella- 
tions than  on  questions;  but  the  first  form  an  essential  prac- 
tice of  a  parliamentary  régime.  It  existed  to  a  lesser  extent 
under  the  old  régime.  It  was  of  necessity  retained  and 
developed  under  the  new. 

The  interpellation  must  be  signed  by  thirteen  members. 
Thus  it  is  no  longer  an  individual  who  interpellates,  but  a 
party  and  the  individual  is  only  the  spokesman  for  the  party. 
When  the  interpellation  is  made  the  Cabinet  declares  either 
that  it  is  ready  to  answer  at  once,  or  it  fixes  the  date  of  its 
reply  in  agreement  with  the  President  of  the  Assembly.  In 
theory  this  reply  must  be  given  within  a  fortnight.    It  goes 


POWER  OF  CONTROL  149 

without  saying  that,  in  contrast  to  what  the  Chancellor  per- 
mitted himself  under  the  Empire,  the  Chancellor  and  the 
Ministers  of  the  Reich  to-day  do  not  use  the  right,  still 
granted  to  them  by  the  regulations,  to  refuse  to  reply  to  an 
interpellation  or  to  refuse  to  name  the  date  on  which  they 
would  be  disposed  to  reply. 

The  interpellation  is  inscribed  on  the  order  of  business  for 
the  day  among  the  other  subjects  on  which  the  Assembly  is 
to  deliberate.  The  spokesman  of  the  party  who  interpellates 
and  the  representative  of  the  Cabinet  having  spoken,  no  dis- 
cussion ensues  unless  at  least  fifty  of  the  members  present 
demand  it.  In  such  a  case  all  those  present  may  in  turn  take 
the  floor.  When  all  the  speakers  have  finished  those  present 
declare  the  discussion  closed  and  the  assembly  passes  auto- 
matically and  without  vote  to  the  next  subject  on  the  order  of 
business. 

However,  the  regulations  provide  that  in  the  course  of  the 
discussion  and  interpellation  motions  signed  at  least  by  thirty 
members  present  may  be  presented  demanding  that  the 
assembly  declare  that  the  position  the  Cabinet  has  taken  on 
the  affair  which  has  been  made  the  subject  of  the  interpella- 
tion does  or  does  not  correspond  to  the  opinions  of  the 
Reichstag.  The  vote  is  then  proceeded  to — unless  at  least 
thirty  of  the  members  present  demand  that  the  vote  be  post- 
poned to  the  next  session,  such  a  postponement  being  their 
right. 

In  practice,  however,  little  use  is  made  of  the  above  provi- 
sion, and  interpellations  rarely  end  with  a  vote;  for  that 
would  have  for  its  purpose  the  ousting  of  a  ministry  or  a 
minister.  Such  a  change  takes  place,  as  we  shall  see,  in  cir- 
cumstances entirely  different.  The  interpellations,  therefore, 
are  used  only  to  give  the  parties  a  chance  to  present  their 
points  of  view  on  this  or  that  problem  raised  by  the  political 
circumstances  of  the  hour. 

From  this  ensues  a  twofold  consequence.    First,  interpella- 


150  THE  GERMAN  CONSTITUTION 

tions  are  much  fewer  than  in  France.  During  the  first  six 
months  of  its  existence  the  National  Assembly  discussed  only 
about  ten  interpellations.  Second,  being  rarely  the  direct 
cause  of  the  ousting  of  Cabinets,  they  provoke  less  excitement 
in  political  circles  and  in  public  opinion,  and  the  Assembly 
may  therefore  discuss  the  problem  embodied  in  an  interpella- 
tion perhaps  more  objectively. 

The  control  by  the  Reichstag  over  the  Cabinet  may  be 
exercised  also  by  means  of  a  parliamentary  investigating 
committee.  This  is  a  novelty  in  German  public  law.  In  its 
first  draft  the  project  of  the  Constitution  did  not  permit  the 
institution  of  investigating  committees  except  in  cases  where 
the  sincerity  or  the  legality  of  an  act  of  the  Cabinet  is  ques- 
tioned. But  the  National  Assembly  has  gone  further  than 
that  and,  with  the  exception  of  a  case  of  actual  lack  of  con- 
fidence in  the  Cabinet  on  the  part  of  the  Reichstag,  the  latter 
assumes  the  right  without  limitation  of  appointing  investigat- 
ing committees.  These  committees  maj'-,  for  example,  be 
created  to  examine  economic  and  other  questions  of  im- 
portance. 

The  Reichstag  must  proceed  to  the  appointment  of  an 
investigating  committee  if  a  fifth  of  its  members  demand  it. 
The  procedure  according  to  which  these  committees  may 
operate  is  not  at  all  prescribed.  The  Constitution  says  only 
that  such  a  committee  may  take  such  testimony  in  open 
session  as  it  itself  or  the  authors  of  the  proposal  of  the  investi- 
gation may  consider  necessary.  But  by  a  majority  of  two- 
thirds  the  committee  may  decide  that  the  meetings  shall  not 
be  public.  Tribunals  and  administrative  authorities  are 
obliged  to  comply  with  the  requests  of  these  committees,  with 
the  view  of  developing  evidence.  The  files  of  these  authorities 
are,  on  demand,  open  to  these  committees. 

The  Reichstag  nominates  in  addition  two  permanent  com- 
mittees. One  of  them  is  that  on  Foreign  Affairs.  Its  purpose 
is  to  submit  the  foreign  policies  of  the  Cabinet  to  a  constant 


POWER  OF  CONTROL  151 

surveillance  by  the  popular  representation.  It  may  after  the 
adjournment  of  the  Reichstag,  or  when  the  powers  of  the 
Reichstag  have  expired,  or  after  a  dissolution  of  the  Reichstag 
remain  in  power  until  the  National  Assembly  has  reconvened. 
Its  meetings  are  theoretically  not  public.  However,  a  major- 
ity of  two-thirds  may  order  that  they  be  such.  It  has  the 
same  powers  as  an  investigating  committee. 

During  the  deliberations  on  the  project  of  the  Constitution, 
serious  objections  were  raised  against  the  institution  of  the 
Committee  on  Foreign  Affairs.  It  was  claimed  that  this  com- 
mittee would  in  advance  be  an  expression  of  lack  of  confi- 
dence in  the  Cabinet  and  as  an  organ  of  surveillance  would 
exercise  a  particularly  troublesome  influence  on  foreign  poli- 
cies. To  this  the  reply  was,  that  in  the  countries  in  which 
there  have  been  appointed  committees  on  foreign  affairs  there 
has  been  no  evidence  of  unfavorable  results.  In  addition, 
this  committee  would  not  be  in  the  first  instance  a  committee 
of  surveillance,  but  an  organism  which,  in  matters  of  foreign 
policy  would  bring  the  influence  of  politically  experienced 
personalities  of  the  Reichstag  to  bear  on  the  professional 
agencies  of  the  diplomatic  service. 

The  second  permanent  committee  provided  by  the  Consti- 
tution has  as  its  purpose  the  control  of  the  activity  of  the 
Cabinet  of  the  Reich  when  the  Reichstag  is  not  in  session, 
between  the  last  meeting  of  one  Reichstag  and  the  opening  of 
a  new  one. 

This  committee,  which  is  formed  on  the  model  of  an  insti- 
tution already  in  existence  before  the  Revolution  in  the  Grand 
Duchy  of  Baden,  is  supposed,  during  the  period  which  the 
Reichstag  is  not  assembled,  to  safeguard  the  right  of  popular 
representation  against  the  Cabinet  of  the  Reich.  It  must  see 
to  it  in  a  permanent  fashion  that  administration  is  conducted 
in  conformity  with  laws,  with  the  decisions  of  the  Reichstag, 
and  the  will  of  the  people.    It  may  not  sit  except  when  the 


152  THE  GERMAN  CONSTITUTION 

Reichstag  is  not  in  session.    It  has  also  the  powers  of  an 
investigating  committee. 

When  the  Constitution  was  being  discussed,  prior  to  its 
adoption,  this  committee,  too,  was  the  subject  of  much  lively- 
opposition.  Some  held  that  the  Cabinet,  so  long  as  it  enjoyed 
the  confidence  of  the  Reichstag,  did  not  require  a  special  organ 
of  surveillance.  This  committee,  its  opponents  went  on,  was 
only  an  application  of  the  conception  that  assumed  an  oppo- 
sition between  the  Cabinet  and  popular  representation.  It 
was  incompatible,  therefore,  with  the  principle  of  parliamen- 
tarism that  rests  on  a  harmony  of  the  Cabinet  and  the  Parlia- 
ment. But  the  majority  of  the  National  Assembly  held,  on 
the  contrary,  that  this  committee  would  correspond  fully  in 
character  to  the  Reichstag  as  an  organ  of  control,  and  would 
be  consistent  with  the  confidence  and  the  good  will  on  which 
the  Cabinet  depends. 

SECTION  n 

THE  PRESIDENT  OF  THE  REICH 

The  parliamentary  system  assumes,  by  the  side  of  the 
Parliament  elected  by  the  people,  a  titular  chief  of  state  with 
executive  power  who,  himself  not  responsible  politically  but 
assisted  by  ministers  who  are  responsible,  co-operates  with 
Parliament  in  the  different  functions  of  the  state.  Basing 
itself,  therefore,  on  the  principle  of  parliamentary  government, 
the  German  Constitution  places  at  the  head  of  the  Reich  a 
President  whose  situation  corresponds  generally  to  that  of  all 
the  chiefs  of  state  in  parliamentary  countries.  The  Consti- 
tution also  attempts  to  create  within  the  general  framework 
of  the  parliamentary  system,  a  new  type  of  chief  of  state. 
It  is  important  therefore  to  examine  precisely  the  principal 
characteristics  of  these  provisions. 


THE  NEED  FOR  A  STRONG  PRESIDENT    153 

1. — THE   NEED   FOR   A   STRONG   PRESIDENT 

The  dominant  idea,  which  guided  the  constituent  assembly 
when  they  drew  up  the  provisions  relative  to  the  President, 
was  this:  the  German  parliamentary  republic  requires  that 
its  President  shall  be  powerful. 

There  must  be  a  President.  The  Independents  did  not  want 
one.  "The  President  will  either  take  his  position  strictly 
within  the  limits  of  the  functions  which  are  his  according  to 
the  parliamentary  principle,"  said  their  spokesman,  Haase, 
"in  which  case  it  will  be  his  ministers  who  will  exercise 
his  powers.  He  will  thus  play  a  purely  ornamental  rôle, 
therefore  useless  and  one  for  which  the  German  Republic 
cannot  afford  to  pay.  Or  he  will  exceed  his  legal  powers,  and 
the  Cabinet  will  be  compelled  to  develop  in  the  direction  of 
a  régime  of  personal  autocracy.  It  is  enough,  for  the  purpose 
of  government  of  the  country,  that  there  should  operate  a 
Ministry  in  harmony  with  the  popular  representation."  ^ 

These  ideas  had  no  chance  to  prevail.  In  committee  Preuss 
fought  them  energetically.  The  President,  he  held,  could  be 
replaced  in  two  ways;  either  by  a  directorate  elected  by 
the  people  or  by  one  elected  by  Parliament.  The  directorate 
would  itself  name  its  ministers,  A  Cabinet  thus  composed 
would  be  doomed  to  inertia  and  incapable  of  making  any 
decision  would  "cry  for  a  Bonaparte."  The  Ministers  who 
should  be  responsible  to  the  Parliament  would  be  practically 
deprived  of  authority,  and  the  Parliament,  with  control  only 
over  the  Ministers,  would  itself  be  weakened.  The  following 
system  could  also  be  considered:  Parliament  could  directly 
elect  a  college  whose  members  would  themselves  administer 
the  various  ministerial  departments;  that  is  to  say,  instead 
of  being  appointed  by  the  President,  Ministers  would  be 
elected  by  Parliament.    This  is  the  Swiss  system.    But  such 

'  Heilfron,  op.  cit.,  vol.  V,  p.  3193. 


154  THE  GERMAN  CONSTITUTION 

a  Cabinet,  admissible  in  a  small  country,  could  not  exist  in 
Germany,  for  the  distribution  of  portfolios  depends  not  ac- 
cording to  merely  logical  premises  but  according  to  the  rela- 
tive strength  among  the  different  parties  of  the  Reichstag. 
There  could  be  no  unity  of  direction  in  a  Ministry  thus 
composed.  Above  all  what  was  needed  was  a  personage  who 
should  be  in  the  Constitution  a  firm  centre.  The  more  com- 
mittees there  are,  and  the  more  elections,  the  greater  also 
becomes  the  need  of  having  a  fixed  point  to  which  may  be 
attached  the  various  strands  in  the  network  of  the  Constitu- 
tion.   There  must  therefore  be  a  President. 

This  President  must  be  powerful.  A  powerful  chief  of  state 
is  necessary'  above  all  in  Germany,  where  people  like  to  be 
governed.  This  is  particularly  necessary  in  such  a  revolu- 
tionary period  as  the  Reich  is  traversing.  There  must  be  a 
President  who  will  be  a  worthy  representative  of  the  nation 
and  who  will  adequately  personify,  with  all  the  authority 
needed,  a  state  as  considerable  as  the  Reich.  The  President 
must  be  powerful  in  order  also  to  act  as  a  balance  to  the  Par- 
liament, which  without  it  might  become  onmipotent. 

This  is  why,  first  of  all,  the  President  of  the  Reich  must 
not  resemble  the  President  of  the  French  Republic.  The  fact 
that  in  France  the  President  is  elected  by  the  National 
Assembly  engenders  a  constitutional  situation  full  of  incon- 
veniences. The  President  there  is  only  a  purely  representa- 
tive figure,  Parliament  having  acquired  absolute  omnipotence 
which  is  directly  contrary  to  true  democracy.  The  parlia- 
mentarism which  Germany  wants  is  a  parliamentarism  whose 
mechanism  is  controlled  by  the  people;  and  not  a  parlia- 
mentarism in  which  the  President  is  reduced  to  complete 
inactivity  and  has  no  other  care  than  to  remain  on  the 
best  possible  terms  with  the  Chambers.  The  members  of  the 
Constituent  Assembly  in  supporting  this  condemnation — • 
unanimous  in  Germany — of  the  French  system  quoted  Pro- 


THE  NEED  FOR  A  STRONG  PRESIDENT    155 

fessor  Redslob,  according  to  whom  parliamentarism  in  France 
is  completely  adulterated.^ 

But  neither  must  the  President  of  the  Reich  resemble  the 
President  of  the  United  States.  True,  there  were  many  in 
Germany  at  the  end  of  1918  and  at  the  beginning  of  1919  who 
wished  for  a  chief  of  state  a  man  who  could  act  and  represent 
the  Reich  with  the  independence  and  the  authority  of  a 
Wilson.  But  this  wish  does  not  seem  to  have  prevailed.  The 
Constituent  Assembly,  in  any  event,  wanted  to  inaugurate 
in  Germany  a  parliamentary  régime;  whereas  in  America,  the 
House  of  Representatives  has  only  legislative  power  and  the 
executive  power  rests  wholly  in  the  hands  of  the  President. 
The  Assembly  resolved  to  give  the  Reichstag  the  right  to  co- 
operate in  executive  action  and  to  exercise  a  control  over  the 
administration.  In  addition  the  President  in  America  him- 
self nominates  his  Cabinet  without  concern  as  to  whether  or 
not  his  Secretaries  have  the  confidence  of  the  Chamber,  to 
whom  they  are  not  responsible.  He  is  invested  with  a  dan- 
gerous omnipotence,  incompatible  with  parliamentary  régime. 
The  American  system  therefore,  like  the  French  system,  must 
be  rejected. 

None  of  the  forms  of  existing  republican  governments  were 
entirely  suitable  for  the  German  Republic;  there  would  have 
to  be  created  for  its  use  a  new  type  of  chief  of  state.  There 
would  have  to  be  created  for  the  first  time  true  parliamenta- 
rism, different  from  the  imperfect  parliamentarism  such  as 
exists  in  France.  French  parliamentarism  consists  of  the 
omnipotence  of  Parliament  which  for  four  years  acts  free 
of  all  control  on  the  part  of  the  people.  After  each  election 
democracy  in  France  plays  no  part.    In  the  true  parliamenta- 

'Sce  in  general  the  work  of  Redslob,  Die  parlamcntarischc  Rcgier- 
ung  in  ihrer  wahren  und  in  ihrcr  unecktcn  Form,  Tubingen,  1918.  It 
is  curious  to  note  that  every  argument  and  all  the  investigations  of 
Redslob  take  as  their  point  of  departure  the  criticisms  addressed  by 
Professor  Duguit  against  the  French  system,  particularly  in  his  Traité 
de  Droit  Constitutionnel,  1911,  vol.  I,  pp.  411-412. 


156  THE  GERMAN  CONSTITUTION 

rism,  however,  Parliament  is  not  omnipotent;  but  is  subject 
to  a  control  exercised  by  a  democratic  authority  and  this 
authority  must  be,  in  Germany,  a  President. 

The  problem  is  therefore  to  institute  in  a  Republic  what 
now  exists  only  in  parliamentary  monarchies,  that  is,  a  chief 
of  state  sufficiently  powerful  to  act  as  a  balance  to  the 
Parliament  and  to  control  the  latter  in  the  name  of  the  people 
without,  however,  giving  him  such  a  power  as,  in  abusing  it, 
would  enable  him  to  dominate  or  annihilate  the  rights  of  the 
Parliament  and  to  establish  an  anti-democratic  rule.  Let  us 
see  how  the  German  Constitution  has  solved  this  problem. 

2. — ^THE   ELECTION    OF    THE    PRESIDENT   AND    THE 
LENGTH  OF  HIS  TERM. 

To  give  the  President  of  the  Reich  the  authority  and  the 
independence  which  it  deemed  necessary,  the  National  As- 
sembly insured  him  a  very  strong  personal  position. 

To  this  end  the  Constitution  declares  first  of  all  that  he 
shall  be  elected  by  the  whole  German  people  (Article  41); 
that  is,  the  plebiscite.  The  President  is  elected  by  the  same 
electors  as  Parliament  itself.  Thus,  President  and  Reichstag 
issue  from  the  same  source,  the  pure  popular  will.  Thus, 
there  is  the  certitude  that  if  one  of  these  two  organs  rejects 
the  direction  desired  by  the  people  or  deviates  from  the  direc- 
tion desired  by  the  people,  the  other  organ  will  immediately 
be  able  to  apply  the  necessary  corrective.  The  President  can 
be  the  sought-for  counter-balance  to  the  authority  of  the 
Reichstag,  for  he  is  truly  the  man  entrusted  by  the  people, 
delegated  by  them  to  rule  with  the  Reichstag. 

This  system  is  not  without  danger.  We  have  seen  it  in 
Germany  itself  when  in  March,  1920,  the  rumour  spread  that 
Marshal  Hindenburg  would  be  a  candidate  for  the  presidency 
of  the  Reich,  a  candidacy  expressly  approved  by  the  former 
Emperor,  one  which  seemed  to  open  the  way  for  a  monarchi- 
cal restoration.     The  Social  Democrats  thereupon  declared 


THE  ELECTION  OF  THE  PRESIDENT     157 

that  the  election  of  the  President  by  the  whole  people  was 
an  institution  republican  only  in  appearance;  that  it  was  in 
reality  much  more  monarchical  than  republican;  that  the 
President  elected  by  the  people  could  arrogate  to  himself  a 
power  which  would  weigh  heavily  on  the  functioning  of  the 
governmental  machinery;  that  to  institute  the  election  of  a 
President  by  the  people  would  subject  his  person  to  disputes 
and  attacks  which  would  leave  his  dignity  seriously  com- 
promised. They,  the  Social  Democrats,  foresaw  the  possi- 
bility of  supporting  again  a  proposition  which  they  had 
already  made  during  the  discussion  on  the  Constitution,  but 
which  they  had  withdrawn,  according  to  which  the  President 
would  have  to  be  elected  by  the  Reichstag,  The  Democrats, 
alarmed  by  the  prospect  of  a  conflict  that  could  arise  between 
the  Reichstag  and  a  President  elected  by  the  people,  seemed 
ready  to  support  such  a  proposition.  The  Centre  abstained 
from  a  decision  on  this  matter.  But  nothing  could  be  done 
without  the  Centre,  for  since  this  was  a  matter  of  constitu- 
tional amendment  a  majority  of  two-thirds  of  the  National 
Assembly  was  indispensable,  and  it  could  not  be  obtained 
without  the  Centre.  The  coup  d'état  of  Kapp  and  Liittwitz 
had  meanwhile  the  effect  on  these  discussions  now  well  known. 
The  Democrats  concluded  from  it  that  thereafter  all  attempts 
to  establish  a  military  candidacy  would  be  doomed  to  failure 
and  that  the  people  would  never  either  nominate  or  support 
a  dictator;  and  that  therefore  there  was  no  longer  any  need 
to  change  the  Constitution  on  this  point. 

Every  German  is  eligible  provided  he  is  thirty-five  years 
old.  The  proposal  in  committee  as  well  as  the  text  of  the 
Constitution  at  the  second  reading  declared  for  an  absolute 
ineligibility  of  members  of  families  who  had  ever  ruled  a  state 
in  the  German  Empire.  This  provision  was  done  away  with 
on  the  third  reading  by  a  majority  consisting  of  the  German 
Nationalists,  the  People's  Party  and  the  Centre.    The  motive 


158  THE  GERMAN  CONSTITUTION 

expressed  by  the  representatives  of  these  parties  was  that 
this  measure  would  constitute  a  law  of  exception  of  the  most 
shameful  kind,  contrary  to  the  principles  of  the  Constitution, 
that  it  was  a  confession  of  weakness  and  an  avowal  of  the 
lack  of  solidity  in  the  benefits  afforded  by  the  victories  of  the 
Revolution. 

But  how  shall  the  President  be  elected?  After  long  dis- 
cussion the  National  Assembly  decided  that  the  election  of 
the  President  should  not  be  regulated  by  the  Constitution  but 
that  the  matter  should  be  left  to  an  ordinary  law.  The  As- 
sembly was  not  able  to  decide  either  for  the  proposition  of  the 
Cabinet  or  for  that  of  the  Committee  on  the  Constitution. 
The  proposal  of  the  Cabinet  provided  for  a  general  election. 
If  in  the  first  canvass  no  candidate  received  the  majority  of 
the  votes  cast,  a  second  one  would  have  to  take  place  in  which 
only  the  two  candidates  who  had  received  the  largest  number 
of  votes  in  the  first  canvass  could  run.  Of  these  two  candi- 
dates the  one  who  obtained  the  majority  would  be  elected. 

This  proposal  aroused  serious  opposition  in  the  Constitu- 
tional Conomittee.  It  was  held  that,  given  a  multiplicity  of 
political  parties,  it  was  probable  that  in  the  first  canvass  a 
great  number  of  candidates  would  present  themselves  and 
consequently  at  the  second  ballot  neither  of  the  two  surviving 
candidates  would  rally  to  his  support  any  important  fraction 
of  the  whole  people.  On  the  other  hand,  it  would  be  difficult 
before  the  first  vote  to  effect  any  union  among  neighbouring 
parties  on  a  common  candidacy,  because  up  to  that  moment 
the  various  groups  would  not  know  what  possibilities  there 
were  for  the  election  of  their  own  candidates.  In  any  event 
the  position  of  the  President  would  be  weakened,  for  a  great 
number  of  those  voting  for  him  would  not  do  so  primarily  out 
of  sympathy  with  him,  but  in  order  to  keep  out  some  other 
person    still    less    in   their    confidence.     All    the    criticisms 


THE  ELECTION  OF  THE  PRESIDENT     159 

that  were  made  at  another  time  against  the  balloting  under 
the  former  electoral  law  would  be  applicable  here  with  added 
force,  since  it  was  a  matter  of  the  election  of  the  personality 
who  must  be  vested  with  the  highest  dignity  in  the  Reich. 

Having  condemned  this  method  of  election,  the  committee 
adopted  the  proposal  that  seemed  to  them  most  opposed  to 
this:  that  candidate  should  be  elected  who  received  on  the 
first  ballot  the  largest  number  of  votes  (a  relative  majority). 
If  this  system  did  away  with  some  of  the  inconveniences  of 
balloting,  there  nevertheless  could  be  urged  against  it  and 
with  greater  force  the  same  objection  as  filed  against  the 
preceding  proposition,  viz.,  that,  given  the  division  of  political 
parties  as  it  was,  a  man  could  be  called  to  the  head  of  the 
nation  who  would  have  behind  him  a  relatively  small  fraction 
of  the  German  population. 

According  to  a  third  proposition,  the  second  balloting  could 
be  avoided  in  the  following  fashion.  The  elector  would  be 
permitted  to  indicate  on  the  first  ballot  a  second  person  to 
whom  he  would  give  his  vote  should  his  first  candidate  not 
obtain  the  necessary  number  of  votes.  This  proposition  had  as 
its  point  of  view  the  idea  that  neighbouring  groups  or  parties 
could  in  this  way  and  in  advance  effect  electoral  compro- 
mises in  the  event  that  none  of  their  candidates  alone  should 
survive  the  first  ballot.  In  this  way  there  would  be  the 
advantage  that  a  second  ballot  would  be  unnecessary.  But 
this  system  was  not  without  danger,  for  first  of  all  it  lacked 
simplicity,  and  again  there  was  nothing  to  show  that  the 
electors  would  thereby  abide  by  the  agreements  concluded  by 
their  parties.  A  well  disciplined  party,  in  which  the  electors 
held  to  the  agreements  made  by  the  chiefs  of  their  party 
would  risk  being  put  at  a  disadvantage  by  this  system  in 
relation  to  a  party  in  which  there  was  no  discipline  whatever. 
There  was  the  danger  in  accepting  this  proposition  that  the 
elections  would  bring  about  a  result  that  would  not  truly  ex- 
press the  real  wish  of  the  people,  but  which  would  depend  on 


160  THE  GERMAN  CONSTITUTION 

the  tactics  and  the  more  or  less  effective  discipline  of  the 
parties. 

None  of  these  propositions  having  been  accepted  only  one 
procedure  remained  possible.  This  was  to  have  two  ballots, 
but  not  to  limit  the  second  ballot  to  two  candidates  and  to 
declare  elected  the  candidate  who  has  received  the  largest 
number  of  votes.  Thus,  no  group  is  obliged  to  deprive  itself 
of  a  candidate  who  might  be  able  to  win.  But  when  the 
different  candidates  have  measured  their  strength  on  the 
first  ballot,  the  parties  could  then  freely  come  to  agreement 
based  on  precise  results.  Nor  would  it  be  indispensable  that 
this  agreement  should  be  based  purely  and  simply  on  the 
proportion  of  votes  obtained  on  the  first  ballot.  Parties  could 
agree  on  a  candidate  who  on  the  first  ballot  had  not  been 
presented.  It  could  be  hoped  that  the  political  situation, 
being  to  some  degree  cleared  by  the  first  vote,  there  would  be 
a  considerable  decrease  in  the  number  of  candidates,  with  the 
result  that  the  President  elected  would  receive  the  majority 
of  all  the  votes;  or  at  least  that  he  would  obtain  a  number 
of  votes  much  larger  than  if  he  were  considered  elected  on 
the  first  ballot  by  a  merely  relative  majority.  The  vote  which 
a  candidate  would  thus  obtain  would  be  given  him  by  the 
free  choice  of  the  population;  he  would  be  much  more  the 
man  trusted  by  the  people  than  he  would  be  if  a  majority  of 
the  electors  had  voted  for  him  constrained  by  a  balloting 
procedure.  But  the  doing  away  with  the  second  ballot  could 
not  be  accomplished  without  at  the  same  time  losing  the 
clearness  with  which  the  popular  will  should  express  itself. 

Such  is  the  system  which  was  finally  adopted  as  law  on  the 
election  of  the  President,  on  March  4,  1920.  According  to  the 
terms  of  Article  4  of  this  law,  "The  one  who  has  obtained  more 
than  half  of  all  the  valid  votes  is  elected.  If  no  one  obtains 
this  majority  a  second  ballot  must  be  proceeded  to,  after 
which  the  candidate  obtaining  a  plurality  of  the  valid  votes 


THE  ELECTION  OF  THE  PRESIDENT     161 

shall  be  considered  elected.     In  case  candidates  obtain  an 
equal  number  of  votes  election  shall  be  decided  by  lot."  ^ 

The  President  is  elected  for  seven  years  and  is  eligible  for 
re-election.  The  choice  for  so  long  a  term  and  the  possibility 
of  re-election  corresponded  closely  to  the  prevailing  idea  ac- 
cording to  which  the  President  should  constitute  a  fixed  and 
permanent  point  in  the  constitutional  mechanism.  "Granting," 
said  Preuss,  "that  the  institutions  set  up  by  our  Constitution 
should  be  as  profoundly  as  possible  stamped  with  democratic 
character,  it  is  best,  for  the  solidity  of  the  whole  edifice,  that 
there  should  be  in  some  part  of  it  a  durable  and  firm  frame- 
work." The  Social  Democrats  observed  that  the  longer  the 
term  of  the  President's  powers  the  more  difiicult  it  would  be 
to  effect  a  change  in  the  person,  and  consequently  the  greater 
was  the  danger  of  seeing  a  life  President  installed.  They  pro- 
posed to  fix  five  years  as  the  term  for  which  the  President 
could  remain  in  power  and  to  make  re-election  more  than  once 
impossible.    But  this  proposal  was  rejected. 

Having  fixed  the  term  of  the  presidential  power  the  Consti- 
tution had  to  provide  for  the  situation  in  which  a  President 
ceased  to  function  before  the  normal  expiration  of  his  powers 
or  found  himself  prevented  from  exercising  them.  It  was  not 
desired,  as  in  the  United  States,  to  institute  a  Vice-President 
who,  as  permanent  representative  and  possible  successor  of  the 
President,  would  have  the  status,  in  the  words  of  Preuss,  of  a 
"republican  crown-prince."  The  provisions  which  were  there- 
upon adopted  are  much  more  supple. 

In  case  the  President  ceases  his  functions  before  their 
normal  expiration,  that  is  to  say,  in  case  of  death,  resigna- 
tion, or  impeachment,  a  new  election  is  immediately  held. 

In  case  he  is  prevented  from  filling  his  duties,  there  must 

be  made   a   distinction  according  to  whether  this   inability 

'This  law  has  never  been  applied.  President  Ebert,  now  in  office, 
was,  it  will  be  remembered,  elected  by  the  National  Assembly. 


162  THE  GERMAN  CONSTITUTION 

seems  apparently  of  short  or  long  duration.  In  the  first  case, 
that  is,  in  case  of  slight  illness  or  because  of  a  short  voyage 
abroad,  or  during  the  first  days  of  a  disability  which  seems 
likely  to  be  prolonged,  or  in  the  interval  between  the  death 
of  a  President  and  the  election  of  his  successor,  the/  place  of 
the  President  is  filled  by  the  Chancellor.  In  the  second  case, 
that  is,  in  case  of  serious  illness  or  insanity,  or  when  a 
motion  has  been  passed  by  the  Reichstag  to  impeach  the 
President,  or  there  is  inaugurated  a  penal  prosecution  of  the 
President  before  the  National  Judicial  Court,  the  Constitution 
decides  that  an  ordinary  law  shall  determine  expressly  by 
whom  his  place  shall  be  filled.  This  law  may  according  to 
circumstances  either  install  a  temporary  Vice-President,  or 
confer  temporarily  the  functions  of  the  President  on  the  Chan- 
cellor until  the  President  is  able  to  resume  office,  or  finishes 
his  term. 

3. — THE    POWERS    OF    THE    PRESIDENT. 

The  powers  vested  in  the  President  of  the  Reich  by  the 
Constitution  are  in  general  analogous  to  those  possessed  by 
every  chief  of  state  in  a  parliamentary  country.  Just  as 
the  Reichstag  exercises  in  addition  to  its  purely  legislative 
powers  a  control  over  the  Cabinet  and  its  administration, 
just  so,  if  the  principles  of  the  parliamentary  system  are  to 
be  applied,  the  President  must  be  invested,  in  addition  to  his 
strictly  executive  authority,  with  powers  that  permit  him  to 
co-operate  in  legislative  work  and  to  exercise  a  control  over 
the  Reichstag  itself. 

It  is  precisely  this,  in  effect,  that  the  Constitution  provides 
for.  The  President  of  the  Reich  has  executive  powers.  He 
nominates  ministers,  he  represents  the  Reich  in  foreign  rela- 
tions, he  appoints  all  the  civil  and  military  servants,  he  is 
supreme  chief  of  the  forces  of  the  Reich  by  land  and  sea,  he 
exercises  the  right  of  pardon  and  he  may  make  regulations.^ 

^  The  President  of  the  Reich  has  not,  what  is  called  in  France,  le 
pouvoir  réglementaire,  that  is  to  say,  the  right  to  issue  general  ordi- 


THE  POWERS  OF  THE  PRESIDENT        163 

He  has  also  powers  of  a  legislative  character.  He  alone  has 
authority  to  promulgate  and  publish  enacted  laws.  He  exer- 
cises a  kind  of  right  of  veto  over  these  laws;  and  he  may, 
according  to  circumstances,  in  the  complicated  conditions  we 
have  already  examined,  either  retard  the  entrance  of  these 
laws  into  operation,  or  submit  them  to  the  people  by  means 
of  a  referendum.  Finally,  he  exercises  a  certain  control  over 
the  Reichstag.  He  may  order  the  President  of  the  Reichstag 
to  convoke  that  Assembly  earlier  than  the  normal  date  of  its 
meeting.  He  nominates  the  judicial  members  of  the  electoral 
commission  for  disputed  elections  to  the  Reichstag.  He  may 
dissolve  the  Reichstag,  etc. 

It  goes  without  saying  that  in  none  of  these  cases  can  the 
President  take  action  without  securing  the  support  and  the 
countersignature  of  a  Minister.  That  is  the  essential  condition 
of  a  parliamentary  régime. 

But  to  strengthen  the  action  of  a  President  and  to  give  his 
position  a  place  of  real  pre-eminence,  which  is  desired  for  him, 
the  Constitution  entrusts  him  with  a  certain  number  of  powers, 
which  we  must  note  particularly,  for  they  are  perhaps  peculiar 
to  the  German  Presidency,  and  give  it  a  special  character. 

The  President  exercises  an  extremely  powerful  control  over 
the  legislative  work  of  the  Reichstag.  When  a  law  has  been 
enacted  he  may,  before  promulgating  it,  submit  it  to  a  refer- 
endum. He  may,  when  the  Reichstag  and  the  Reichsrat  have 
declared  urgent  a  law  which  they  have  enacted,  promulgate 
it  immediately  even  if  a  third  of  the  Reichstag  has  demanded 
that  its  promulgation  be  deferred  (Article  72).  The  aim  of 
such  a  demand  for  postponement  is  to  give  the  opponents  of 
the  law  the  chance  to  prepare  a  referendum  and  to  proceed  to 

nances  obligatory  on  all  citizens.  He  cannot  make  rcpilations  of 
this  kind  except  in  cases  where  the  Constitution  or  an  ordinary  law 
gives  him  special  power  to  do  so.  In  such  a  case  either  he  issues  the 
regulation,  naturally  with  the  countersignature  of  a  Minister  (Articles 
48,  49,  51,  59  of  the  Constitution,  for  example),  or  he  must  first  obtain 
the  consent  of  the  Reichstag. 


164  THE  GERMAN  CONSTITUTION 

it.  The  fact  that  the  President  has  the  right  not  to  act  on 
such  a  postponement  and  to  give  the  law  immediate  operative 
power  by  promulgating  it,  offers  him  the  chance  to  prevent 
such  a  referendum.  It  is  also  in  his  right  when  there  is  no 
agreement  between  the  Reichstag  and  the  Reichsrat  on  the 
text  of  a  bill,  either  to  decide  that  the  law  is  not  in  effect  and 
shall  not  ent«r  into  operation,  or  to  decide  for  a  referendum. 
He  is  free,  finally,  when  a  law  has  been  passed  in  the  Reichs- 
tag by  a  two- thirds  majority  against  the  protest  of  the  Reichs- 
rat, either  to  promulgate  this  law,  or,  if  he  does  not  wish  to 
take  the  responsibility  of  that,  to  submit  to  a  referendum  the 
question  on  which  the  Reichstag  and  the  Reichsrat  disagree. 

The  President  commands  all  the  armed  forces  of  the  Reich. 
He  is  from  this  point  of  view  the  direct  successor  of  the 
Emperor.  He  has,  therefore,  the  power  called  Reichsexecu- 
tion;  that  is  to  say,  that  when  a  state  does  not  carry  out  the 
obligations  imposed  upon  it  by  the  Constitution  or  by  a  law 
of  the  Reich,  he  has  the  right  to  compel  it  to  do  so  with  the 
aid  of  armed  force.  But,  above  all,  he  has  the  right  to  declare 
a  state  of  siege. 

This  is  a  peculiar  point  in  the  German  Constitution. 
Whereas  in  France,  the  state  of  siege  cannot  be  declared  ex- 
cept by  a  law,  in  Germany  it  is  sufficient  to  declare  it  by 
means  of  a  simple  order  of  the  President.  Article  48  gives 
him  the  right,  when  security  and  public  order  are  seriously 
affected  or  menaced,  to  take  necessary  measures  for  the  re- 
establishment  of  security  and  public  order  and  at  need  to  use, 
therefore,  armed  force  to  that  end.  But  in  order  that  he  may 
be  able  to  resort  to  these  exceptional  measures,  tranquillity 
and  public  safety  must  be  seriously  affected  or  menaced.  But 
he  alone  has  the  power  to  decide  if  and  when  this  condition  is 
fulfilled.  In  the  same  way  he  alone  decides  what  measures 
are  necessary  for  the  re-establishment  of  order.  He  may  par- 
ticularly— the   Constitution   expressly    gives    him   this   right 


THE  POWERS  OF  THE  PRESIDENT        165 

but  only  in  a  general  way — suspend  individual  liberties.  As  to 
details  in  this  matter  the  Constitution  provided  for  the  passing 
of  an  ordinary  law  which  should  prescribe  particulars  more 
completely;  but  this  law  has  not  yet  been  enacted.  It  is 
agreed  to  recognize  that  until  such  a  iaw  has  been  passed  the 
authority  of  the  President  in  this  respect  remains  unlimited. 
He  may  therefore  not  only  order  all  measures  which  seem  to 
him  necessary  for  this  or  that  emergency,  but  he  may  also  by 
an  ordinance  prescribe  general  and  permanent  measures.  He 
may  institute  penalties  or  increase  those  provided  by  the 
penal  code.  He  may  also  establish  special  tribunals.  It  is 
in  effect  a  dictatorship. 

This  extraordinary  power  which  has  been  given  him,  the 
President  uses  to  a  very  large  extent.  Germany,  it  is  true, 
is  traversing  a  particularly  troubled  period  and  it  is  prob- 
able that  this  is  responsible  for  the  great  number  of  ordi- 
nances issued  by  the  President  creating  states  of  siege.  There 
are  regions  that  are  almost  constantly  in  a  state  of  siege, 
particularly  the  Ruhr.  In  1920  Berlin  remained  in  a  state 
of  siege  from  January  13th  to  May  28th. 

The  modes  of  applying  these  high  executive  powers  are 
extremely  variable  and,  according  to  circumstances,  the  meas- 
ures prescribed  constitute  a  menace  more  or  less  grave  to  the 
rights  of  the  individual.  In  serious  situations  all  the  authority 
goee  to  the  Minister  of  War,  who  may  exercise  them  himself 
or  transmit  them  to  his  subordinates,  and  who  is  assisted  in 
civil  administration  by  a  Commissioner  of  the  Cabinet. 
Penalties  are  enacted;  arson,  the  illegal  use  of  explosives, 
flooding,  damage  done  to  railways,  and  resistance  to  legal 
officers  in  the  course  of  a  riot  are  punishable  by  death.  Ex- 
traordinary court-martials  arc  created  and  invested  with 
broad  authority.  The  military  powers  may  even  institute 
court-martials  appointed  by  the  commanders  of  the  troops 
charged  with  suppressing  the  disorders  and  presided  over  by  an 


166  THE  GERMAN  CONSTITUTION 

officer  of  these  troops.^  In  less  serious  situations  the  author- 
ity in  the  territory  involved  is  given  over  to  a  commissioner 
of  the  civil  government,  nominated  by  the  Minister  of  the 
Interior.  The  liberty  of  individuals  is  suspended,  but  cer- 
tain guarantees  are  retained.  Prison  sentences  and  fines  are 
instituted.  Between  these  two  extreme  types  of  state  of  siege 
there  is  a  whole  gamut  of  provisions  more  or  less  severe;  and 
almost  daily  new  ordinances  appear  establishing  the  state  of 
siege  in  this  region,  sharpening  it  in  another,  relaxing  here 
and  abolishing  it  there.  There  are  territories  declared  in  a 
state  of  siege  in  which  this  abnormal  situation  is  not  mani- 
fested by  a  single  practical  restriction;  it  is  there  only  a  meas- 
ure of  precaution  on  the  part  of  the  government.  But  there 
are  others  where  repressions  of  a  terribly  brutal  nature  take 
place. 

The  only  limit  that  the  Constitution  has  provided  to  this 
omnipotence  of  the  executive  power  consists  in  the  obligation 
it  places  on  the  President  to  acquaint  the  Reichstag  with  all 
the  measures  he  has  taken  by  virtue  of  Article  48;  and  in  the 
right  that  is  given  by  the  Constitution  to  the  Reichstag  to 
demand  that  he  withdraw  these  measures.  It  is  because  of 
such  a  demand  that  the  Cabinet  was  compelled  on  May  28, 
1920,  to  abolish  the  then  state  of  siege  throughout  the  whole 
Reich,  except  in  the  Ruhr,  to  permit  the  elections  of  June  6 
to  be  held  under  normal  conditions. 

The  parties  of  the  Right,  for  whom  the  authority  given  the 
President  seems  never  strong  enough,  wanted  to  give  him  still 
another  power,  the  right  to  prescribe  a  referendum  or  to  dis- 
solve the  Reichstag  without  a  countersignature  of  a  Minister. 
The  President,  they  held,  would  never  be  able  to  secure  the 
countersignature  of  a  Minister  to  a  dissolution  of  the  Reichs- 
tag, or  to  appeal  to  the  people  against  the  Reichstag,  because 
ministers  depend  for  their  official  lives  on  the  confidence  the 

^See  particularly  the  decree  of  March  19,  1920,  Reichsgesetzblatt, 
1920,  p.  467. 


THE  POWERS  OF  THE  PRESIDENT        167 

Reichstag  reposes  in  them.  It  will  be  necessary  in  such  a  case, 
therefore,  for  the  President  to  form  a  new  ministry  to  counter- 
sign his  ordinance.  But  if  the  electors  of  the  nation  decide 
against  a  President,  he  will  have  to  call  back  to  office  the 
former  Ministry.     Of  what  use  is  this  roundabout  method? 

But  Preuss  vigorously  defended  the  necessity  of  the  coun- 
tersignature, dictated  by  principles  of  a  republican  democracy 
and  of  parliamentarism. 

He  began  by  reviewing  the  hypothesis  of  a  referendum. 
In  such  a  situation,  he  said,  one  of  two  possibilities  occurs. 
Either  the  President  and  the  Minister  are  in  agreement  to 
prescribe  a  referendum;  in  which  case  would  the  Minister 
refuse  his  countersignature?  That  would  be  contrary  to  the 
normal  relations  which  must  exist  between  the  President  and 
his  Ministry;  especially,  too,  as  a  referendum  is  subject  to 
certain  conditions  imposed  by  the  Constitution,  and  these 
conditions  have  to  be  observed  and  some  one  must  take  the 
responsibility  in  case  they  are  violated.  Or  in  the  other  case, 
the  more  important,  the  Ministry  are  against  the  referendum; 
they  are  determined  not  to  permit  such  a  politically  important 
act  to  be  committed  against  their  best  judgment.  In  such  a 
situation  the  Ministry  will  immediately  resign  and  the  Presi- 
dent, not  being  able  to  remain  without  a  Ministry',  would  have 
to  form  a  new  one.  Whether  or  not,  therefore,  the  counter- 
signature of  a  Minister  to  such  decrees  is  required,  the  situation 
culminates  in  a  change  of  Ministry.  But  it  is  more  natural 
that  if  the  President  wants  to  bring  about  an  act  against  the 
political  convictions  of  his  Ministry,  he  will  seek  a  Cabinet 
that  will  accept  the  responsibility  for  this  act. 

The  situation  is  quite  analogous  in  reference  to  the  disso- 
lution of  a  Reichstag.  If  the  President  dissolves  the  Reichstag 
and  wants  to  prevail  over  its  majority  he  can  no  longer  retain 
the  Ministry  supported  by  this  majority.  Dissolution  results 
from  the  fact  tlint  the  President  seeks,  by  a  new  election,  to 
change  the  majority  to  a  minority  and  the  minority  to  a 


168  THE  GERMAN  CONSTITUTION 

majority.  He  must  therefore  ask  himself  this  question. 
What  political  combination  can  I  use?  Such  a  calculation 
must  be  faced  if  it  is  not  permitted  the  President  to  prescribe 
a  dissolution  of  the  Reichstag  except  with  the  countersignature 
of  a  Minister.  The  President  is  not  absolutely  subject  to  the 
majority;  he  may  attempt,  in  appealing  to  the  people,  to  make 
another  majority  of  the  minority,  but  in  that  case  he  must 
take  into  this  minority  statesmen  who  will  accept  the  respon- 
sibility for  such  an  attempt. 

The  President  may,  therefore,  order  the  referendum  and 
dissolve  the  Reichstag;  but  these  two  decisions,  like  all  the 
others,  must  be  countersigned  by  a  Minister, 

In  addition  to  the  powers  we  have  just  examined,  all  of 
which  are  expressly  provided  by  the  Constitution,  there  are 
others  which  the  President  possesses  because  they  logically 
follow  from  even  the  practice  of  a  parliamentary  régime. 
Certainly  he  has  the  right  to  demand  reports  from  Ministers 
and  any  information  from  them  on  the  course  of  affairs.  He 
has  the  right  also  to  be  present  at  sessions  of  the  Cabinet;  and 
while  it  is  true  that  he  has  not  the  right  to  vote  there,  he  may 
come  there  whenever  he  pleases  and  take  the  chair.^ 

4. — THE  KESPONSIBILITY  OF  THE  PRESIDENT. 

Responsibility  engenders  authority  and  there  is  no  author- 
ity without  responsibility.  Whatever  powers  a  Constitution 
may  give  its  chief  of  state,  they  will  rest  a  dead  letter  if  he 
cannot  personally  assume  the  responsibility  for  the  exercise 
of  these  powers.  The  President  of  the  United  States,  who 
is  thus  held  responsible,  really  governs.  In  a  parliamentary 
regime  the  chief  of  state  is  not  responsible;  thence  comes  its 
weakness.     But  the  German  Constitution  desires  at  once  a 

^  At  the  meeting  of  the  Committee  on  the  Constitution  on  April  4, 
1919,  Preuss,  then  Minister  of  the  Interior,  declared  that  such  was 
already  the  practice  in  Germany  and  that  President  Ebert  presided  over 
the  most  important  meetings  of  the  Council  of  Ministers. 


RESPONSIBILITY  OF  THE  PRESIDENT    169 

parliamentary    regime    and    a    strong    presidency.     It    must 
therefore  seek  a  ground  for  the  combination  of  the  two. 

(1)  Politically  the  President  of  the  Reich  is  in  theory  not 
responsible.  That  is  to  say,  that  he  cannot  be  overthrown  by 
vote  of  lack  of  confidence  on  the  part  of  the  Reichstag.  All 
his  acts  must  be  countersigned  by  a  Minister,  and  it  is  the 
latter  who  takes  the  responsibility  for  them  and  who  alone 
suffers  the  consequences. 

There  is,  however,  a  limit  to  this  political  irresponsibility 
of  the  President.  If  the  conflict  between  the  President  and 
the  Reichstag  is  really  irreconcilable  he  may  submit  the 
conflict  to  the  people,  who  decide.  It  is  recalled  to  this  effect 
that,  according  to  Article  42,  the  Reichstag  by  a  decision  taken 
by  a  majority  of  two-thirds  may  demand  of  the  people  a  vote 
on  the  impeachment  of  the  President.  If  the  people  approve, 
the  President  ceases  his  functions;  therein  operates  a  kind  of 
political  responsibility  of  the  President. 

(2)  The  President  of  the  Reich  is  criminally  responsible. 
Two  hypotheses  must  be  considered: 

(a)  The  President  may  have  committed  some  crime  for 
which  the  ordinary  penal  law  prescribes  punishment.  Can  he 
be  prosecuted  before  ordinary  tribunals  as  an  ordinary  indi- 
vidual? This  question  was  vigorously  debated  before  the 
Committee  on  the  Constitution.  It  was  not  desired  that  the 
President  should  be  absolved  from  all  criminal  responsibility. 
But,  on  the  other  hand,  it  was  equally  undesirable  that  he 
should  be  placed  in  the  same  status  as  ordinary  citizens,  be- 
cause this  would  give  him  a  position  less  favorable  than  that 
which  the  Constitution  grants  members  of  the  Reichstag.  It 
was  decided  finally  that,  like  the  latter,  he  cannot  be  criminally 
prosecuted  during  the  term  of  his  powers,  except  with  the 
authorization  of  the  Reichstag. 

(b)  Or  the  President  may  be  guilty  of  a  violation  of  the 
Constitution  or  a  law  of  the  Reich.  In  this  case  Article  59 
provides  that  he  may  be  prosecuted  by  the  Reichstag  in  the 


170  THE  GERMAN  CONSTITUTION 

Supreme  Judicial  Court.  The  proposal  to  bring  an  impeach- 
ment must  be  signed  by  at  least  one  hundred  members  and 
supported  by  a  two-thirds  majority.  But  it  must  be  specified 
here  that  this  is  a  matter  of  legal  procedure  and  that  therefore 
this  prosecution  can  be  based  only  on  the  violation  of  a 
definite  provision  of  the  Constitution  or  of  a  law.  In  the 
case  of  a  simple  political  divergence  of  opinion  between  the 
Reichstag  and  the  President,  only  the  political  responsibility 
for  the  matter  can  be  called  into  the  question,  and  the  one 
way  open  to  the  Reichstag  is  that  of  an  impeachment  approved 
by  the  people. 

What  penalty  can  the  Supreme  Judicial  Court  pronounce 
against  the  President  in  case  of  a  verdict  of  guilty?  The 
Constituent  Assembly  at  first  adopted  a  provision  according 
to  which  the  Court  could  simply  declare  the  President  re- 
moved, or  to  declare  him  incapable  of  exercising  any  public 
function  whatever.  Finally,  however,  it  was  decided  to  leave 
this  question  to  the  law  organizing  the  Court  of  Justice. 

But  the  situation  may  arise  in  which  an  act  committed  by 
the  President  constitutes  both  an  infraction  of  the  penal  law 
as  well  as  a  violation  of  the  Constitution.  Which  shall  pass 
first  upon  this,  the  ordinary  tribunal  or  the  Supreme  Judicial 
Court?  After  long  hesitation,  the  Constituent  Assembly  de- 
cided to  leave  this  question  also  to  the  future  law  dealing 
with  the  Supreme  Judicial  Court. 

(3)  The  President  is  finally  civilly  responsible  for  any  acts 
of  damage  he  may  commit.  Although  he  is  not  really  a  civil 
servant,  in  the  actual  sense  of  the  word,  he  is  on  this  point 
subject  to  the  same  regulations  as  the  civil  servants  of  the 
Reich.  (The  law  on  the  responsibilities  of  civil  servants, 
March  22,  1910.) 

SECTION  III 

THE  CABINET  OF  THE  REICH 

The  Cabinet  in  a  parliamentary  government  constitutes  a 
bond  of  union  between  the  parliament  and  the  chief  of  state. 


THE  CABINET  OF  THE  REICH  171 

In  Germany  it  must  play  a  still  more  important  rôle,  since 
both  the  Reichstag  and  the  President  are  directly  elected  by 
the  people  and  have  theoretically  the  same  equal  powers.  It 
is  therefore  indispensable  that  an  organism  of  co-operation  and 
equilibrium  exist  between  them. 

But  this  mechanism  is  extremely  delicate.  The  rôle  of  the 
Ministry,  always  very  complex,  depends  above  all  on  the 
traditions  and  the  circumstances  of  the  men  in  question. 
What  relations  should  subsist  between  the  President  and  the 
Prime  Minister;  between  the  Prime  Minister  and  the  other 
members  of  the  Cabinet;  and  in  what  measure  should  one 
be  subordinated  to  the  others?  What  is  the  exact  position 
of  the  Cabinet  in  regard  to  the  Chamber?  Is  it  its  guide,  or 
must  it  be  limited  to  the  execution  of  the  Chamber's  decisions? 
These  are  questions  of  degree  that  require  or  may  require 
different  solutions  in  each  country  for  each  Ministry. 

It  is  difficult,  if  not  impossible,  to  decide  on  these  in  ad- 
vance in  a  complete  and  detailed  manner.  In  England  there 
is  no  written  provision  on  the  manner  in  which  the  mechanism 
of  the  Cabinet  must  function.  In  France  there  are  a  few 
vague  and  insufficient  provisions  in  the  Constitution.  But  the 
German  Constitution  has  attempted  to  formulate  the  general 
rules  according  to  which  the  government  of  the  Cabinet 
should  operate. 

The  project  by  Preuss  contained  not  a  single  detail  on  this 
point;  it  confined  itself  to  stating  the  principle  of  parlia- 
mentary government.  Against  this  reserve  criticisms  were 
raised  in  committee  as  well  as  in  plenary  sessions  of  the  As- 
sembly. Former  Minister  von  Delbriick  criticized  Preuss' 
project  for  its  lack  of  a  sufficient  guarantee  that  the  organism 
of  the  government  would  develop  in  a  specific  manner  and  in 
the  direction  desired  for  it.  He  held  that  the  evolution  of  an 
organism  as  important  as  the  Ministry  should  not  be  left  to 
chance,  and  that  there  must  be  fixed  at  least  the  general  lines 
according  to  which  it  should  develop.    He  then  indicated  some 


172  THE  GERMAN  CONSTITUTION 

of  these  directing  principles  and  they  were  incorporated  in  the 
Constitution. 

The  National  Assembly  has  certainly  made  therein  an  im- 
portant attempt  and  we  shall  study  the  regulations  which  it 
has  thus  established.  We  shall  then  examine  how  these  regu- 
lations work  out  in  practice. 

1. — THE  CHANCELLOR  AND  THE  MINISTERS  ACCORDING 
TO  THE  CONSTITUTION. 

In  the  terminology  of  Weimar,  the  Ministry  is  called  the 
"National  Cabinet."  Article  52  says,  "The  National  Cabinet 
consists  of  the  National  Chancellor  and  the  National  Min- 
isters." There  is  thus  stated  a  difference — fundamental  in  the 
German  system — between  the  Chancellor  and  the  Ministers. 

It  will  be  recalled  how  the  Cabinet  of  the  old  Empire  was 
organized.  The  Chancellor,  properly  speaking,  was  the  only 
Minister;  and  the  Secretaries  of  State,  by  whom  he  was  as- 
sisted or  represented,  were  simply  high  civil  servants  absolutely 
subordinate  to  the  Chancellor.  These  Secretaries  of  State  never 
met  together  to  deliberate  on  public  affairs;  each  of  them 
freely  decided  on  the  affairs  of  his  department  and  executed 
them.  But  the  Secretaries  of  State  had  to  refer  to  the  Chan- 
cellor every  time  that  a  difference  of  opinion  arose  between 
their  departments  over  any  contemplated  law  or  any  admin- 
istrative measure  whatever.  Such  a  discussion  was  often 
prolonged  for  months,  because  the  Chancellor  was  not  in  a 
situation  to  express  an  opinion,  nor  to  pronounce  on  the  verj' 
complex  problem.    This  was  the  bureaucratic  system. 

For  this  system,  with  its  obvious  inconveniences,  von 
Delbriick  proposed  to  substitute  a  collegiate  one.  The  Minis- 
ters form  a  Cabinet,  to  which  all  questions  concerning  general 
policy  or  involving  the  province  of  their  several  depart- 
ments are  submitted.  The  Prime  Minister  is  only  the  first 
among  them,  primus  inter  pares;  the  decision  is  made  by  the 


THE  CHANCELLOR  AND  THE  MINISTERS    173 

whole  Cabinet,  which  naturally  assumes  the  whole  burden  of 
responsibility. 

The  Constituent  Assembly  supported  an  intermediate  solu- 
tion, which  partook  both  of  the  bureaucratic  system  and  the 
collegiate.  It  adopted  a  sort  of  limited  collegiate  system. 
The  Chancellor  is  not  as  formerly  the  only  Minister  of  the 
Reich  ;  he  is  Minister  by  the  same  title  as  the  other  members 
of  the  Cabinet,  but  he  has  a  character  distinct  from  those  of 
the  other  Ministers.  Without  being  a  hierarchic  superior 
over  these  he  is  on  another  plane  and  enjoys  certain  rights 
in  comparison  to  the  others. 

This  distinction  established  by  the  Constituent  Assembly 
between  the  two  elements  of  the  government,  the  Chancellor 
on  the  one  hand  and  the  Ministers  on  the  other,  is  manifested 
in  the  three  respects  in  the  nomination  of  the  ministers,  their 
prerogatives  and  their  responsibility. 

(1)  They  are  nominated  in  a  different  manner.  The  Chan- 
cellor is  nominated  by  the  President  of  the  Reich  who  natu- 
rally must  be  guided  therein  by  the  political  situation.  Accord- 
ing to  circumstances,  the  President  is  obliged  to  nominate  some 
party  leader  of  the  group  forming  the  majority  of  the 
Reichstag;  or  his  choice  may  be  exercised  among  several 
political  figures  according  to  the  combination  possible  among 
the  parties  of  the  majority.  It  is  true  that  the  Ministers  are 
also  appointed  by  the  President  of  the  Reich,  but  on  the 
nomination  by  the  Chancellor,  and  it  seems  that  in  practice 
the  President  is  always  bound  by  this  consideration.  The 
Chancellor  may  not  be  recalled;  his  functions  cease  only 
through  resignation  or  because  he  is  unseated  by  the  majority 
of  the  Reichstag.  The  Ministers,  on  the  other  hand,  may  be 
recalled  and  the  decision  may  be  taken  here,  too,  by  the 
President  of  the  Reich  on  the  proposal  by  the  Chancellor. 

(2)  In  regard  to  powers  there  exists  a  still  more  profound 
difference  between  the  Chancellor  and  the  Ministers.    The 


174  THE  GERMAN  CONSTITUTION 

principle  is  this:  the  Chancellor  determines  and  alone  deter- 
mines the  general  com'se  of  the  Cabinet's  policy.  The  other 
Ministers  direct  the  affairs  of  their  respective  departments 
along  the  lines  fixed  by  the  Chancellor  in  his  general  policy. 
(Article  56.)  In  other  words,  it  seems  that  the  German 
Constitution,  without  expressly  saying  so,  wants  to  establish 
the  classic  distinction  between  "governing"  and  "administer- 
ing." The  Chancellor  governs,  the  other  members  of  the 
Cabinet  administer.  This  essential  distinction  recurs  more 
or  less  clearly  enunciated  in  all  the  provisions  relative  to  the 
powers  of  the  Ministers. 

The  latter  have  as  their  most  important  function  the  exer- 
cise of  those  powers  of  which  the  President  of  the  Reich  is  the 
chief  holder.  They  prepare  and  countersign  the  ordinances 
of  the  President.  But  do  they  all  indiscriminately  counter- 
sign all  decrees  and  may  each  Minister  countersign  any  of 
the  decisions  of  the  President?  Not  in  the  least.  The  Chan- 
cellor countersigns  all  decisions  touching  the  general  policy 
of  the  Cabinet,  but  he  is  also  authorized  to  sign  other  decrees. 
The  Ministers  countersign  only  the  decrees  that  effect  their 
respective  departments.  From  this  results  the  following: 
When  a  decree  of  the  President  is  countersigned  by  a  Minister 
it  may  be  considered  that  the  Cabinet  holds  it  to  be  a  purely 
administrative  matter.  Every  decision  presenting  a  certain 
political  importance  is  either  countersigned  by  the  Chancellor 
only  or  by  both  the  Chancellor  and  the  Minister  whose  depart- 
ment is  affected.  The  Ministers  have  in  the  second  place  their 
own  powers.  They  make  general  or  individual  decisions  which 
they  sign  themselves.  These  decisions  are  of  two  kinds  :  some 
of  them  must  be  deliberated  on  and  decreed  in  the  Council 
of  Ministers;  other  decisions  are  taken  by  the  Ministers  indi- 
vidually. 

There  are  above  all  powers  which  the  Ministers  exercise 
in  the  Council  of  Ministers,  and  it  is  here  that  the  mixed 
character  of  the  regulations  provided  by  the  Constitution  is 


THE  CHANCELLOR  AND  THE  MINISTERS    175 

revealed  still  more  clearly.  The  predominant  position  ac- 
corded the  Chancellor  comes  from  the  fact  that  he  presides 
over  the  Council  of  Ministers — when  the  President  of  the 
Reich  is  not  present;  and  the  fact  that  in  case  of  a  tie  he 
decides.  It  may  be  asked  if  the  Chancellor  can  be  put  in  the 
minority  and  what  would  result  from  such  a  situation. 
Theoretically,  according  to  the  collegiate  principle,  a  decision 
adopted  by  the  majority  must  always  be  executed.  But  it 
seems  that  the  Ministry  cannot  go  against  the  opinion  of  the 
Chancellor,  who  alone  has  the  right  to  fix  the  general  lines  of 
policy  and  who  in  addition  can  always  exercise  the  threat  of 
resigning,  which  would  thereby  involve  the  fall  of  the  whole 
Ministry.  The  Council  of  Ministers  has  its  own  order  of 
procedure  which  must  be  approved  by  the  President. 

On  the  other  hand,  the  collegiate  system  is  found  to  be 
very  widely  applied  in  the  ensemble  of  the  provisions  vesting 
in  the  Council  of  Ministers  some  of  the  most  important  powers 
that  properly  belong  to  Ministers.  The  Chancellor  fixes  the 
general  course  of  the  policy  to  be  pursued  by  the  government; 
but  the  Ministers  must  see  to  it  that  in  their  various  depart- 
ments the  policies  practised  conform  to  this  general  course, 
as  well  as  that  their  individual  policies  do  not  conflict  with 
the  interests  or  the  policies  of  other  departments.  Also  the 
Constitution  itself  enumerates  a  certain  number  of  matters 
which  cannot  be  dealt  with  except  in  the  Council  of  Ministers; 
and  it  provides  that  ordinary  laws  may  extend  the  number  and 
character  of  these  matters.    They  are  as  follows: 

(1)  All  projects  of  law.  In  contrast  to  what  occurs  in 
France,  it  is  not  the  chief  of  state  who  has  the  initiative 
in  laws  but  the  Council  of  Ministers.  All  projects  of  laws 
emanating  from  the  Cabinet  must  be  discussed  and  drawn 
up  in  the  Council  before  being  sent  to  the  Reichstag. 

(2)  All  matters  that  touch  the  domains  of  the  authority  of 
the  various  Ministers,  and  on  which  the  latter  cannot  privately 
come  to  an  agreement. 


176  THE  GERMAN  CONSTITUTION 

(3)  The  power  to  issue  ordinances.  In  Germany  there  is 
no  organ  that  has  general  authority  to  make  all  ordinances. 
A  particular  organ  can  only  prescribe  ordinances  within  its 
own  limits  and  to  the  end  assigned  to  it  by  the  Constitution 
or  ordinary  laws.  We  have  seen  that  such  is  the  case  for  the 
President;  and  such  is  also  the  case  for  the  Cabinet.  The 
Cabinet  of  the  Reich  may  prescribe  regulations  of  three  kinds: 

(a)  Sometimes  the  Cabinet  of  the  Reich  has  authority  to 
prescribe  only  a  regulation.  This  is  particularly  the  case 
when  it  has  to  prescribe  administrative  measures  of  the  gen- 
eral character  necessary  for  the  execution  of  a  law. 
(Article  77.) 

(b)  Sometimes  the  Cabinet  cannot  prescribe  a  regulation 
except  with  the  approval  of  the  Reichsrat  This  is  particu- 
larly the  case  in  the  circumstances  aimed  at  in  Articles  88, 
91,  77,  par.  2  of  the  Constitution. 

(c)  Finally,  the  law  of  April  17,  1919,  "On  a  simplified 
form  of  legislation  relative  to  economy  during  the  period  of 
transition,"  gives  to  the  Cabinet  of  the  Reich  the  power  under 
certain  conditions  to  enact  by  means  of  decrees  what  amount 
to  veritable  laws.  According  to  this  law,  the  Cabinet  may 
prescribe  regulations  having  the  force  of  law,  and  conse- 
quently may  even  modify  laws  previously  made  on  condition 
that  it  has  the  consent  of  the  Reichsrat  and  of  a  committee 
of  twenty-eight  members  named  by  the  National  Assembly. 
The  Ministers  finally  have  powers  which  they  exercise  indi- 
vidually.   They  are  in  theory  purely  administrative  powers. 

III. — The  distinction  established  by  the  Constitution  be- 
tween the  Chancellor  and  the  Ministers  recurs  in  the  matter 
of  their  political  responsibility.  Their  rôles  being  different, 
it  is  logical  that  their  responsibility  operate  under  different 
conditions. 

The  Chancellor  and  the  Ministers  are  equally  responsible 
before  the  Reichstag.  They  "require  for  the  administration 
of  their  offices  the  confidence  of  the  National  Assembly.    Each 


WORKING  OF  CONSTITUTIONAL  RULES     177 

of  them  must  resign  if  the  National  Assembly  by  formal  reso- 
lution withdraws  its  confidence,"  says  Article  54.  To  follow 
the  letter  of  this  article  it  may  be  believed  that  there  is  not 
a  collective  responsibility  and  that  only  those  Ministers  must 
resign  against  whom  a  vote  of  want  of  confidence  is  passed. 
However,  that  does  not  seem  to  be  the  real  meaning  of 
Article  54.  This  becomes  more  clear  when  one  compares 
it  with  Article  56.  These  two  articles  together  indicate  the 
following.  The  Chancellor  and  the  Ministers  are  responsible 
to  the  Reichstag  in  the  same  way,  but  the  provinces  of  their 
responsibilities  are  different.  The  Chancellor  is  responsible 
for  the  general  course  of  policies,  that  is  to  say,  for  principles 
and  plans  of  great  scope,  to  the  exclusion  of  administrative 
measures.  On  the  other  hand,  the  Ministers  are  responsible 
not  for  the  general  course  of  policies  but  for  the  manner  in 
which  they  direct  their  departments.  In  addition  the  political 
responsibility  of  all  the  Ministers  is  involved  in  decisions 
taken  by  them  in  the  Council. 

As  for  criminal  and  civil  responsibility  the  Chancellor  and 
the  Minister  are  placed  on  the  same  footing,  and  are  answer- 
able for  criminal  and  civil  offences  under  the  same  conditions 
as  the  President  of  the  Reich. 

2. — THE  WORKING  OF  CONSTITUTIONAL  RULES;  HOW  A  MINISTRY 
IS   FORMED,   WORKS,   AND  IS  DISSOLVED. 

It  is  observed  that  the  Constitution  has  attempted  a  kind 
of  codification  of  rules  for  a  parliamentary  regime,  such  as  its 
authors  have  conceived  it.  It  attempts  to  give  thus  a  guar- 
antee that  this  régime,  new  in  Germany,  will  develop  along 
the  fixed  course  it  has  traced  for  it.  It  is  interesting  to  inquire 
how  up  to  now  German  statesmen  have  observed  these 
rules.  To  this  end  it  seems  that  the  best  thing  to  do  is  to 
describe  how  a  Ministry  actually  is  formed,  works  and  is 
dissolved. 


178  THE  GERMAN  CONSTITUTION 

(1)  Normally,  and  it  must  be  so  according  to  the  German 
Constitution,  when  it  is  a  matter  of  forming  a  new  Ministry, 
the  chief  of  state  charges  some  political  leader  with  the  task 
of  constituting  a  Cabinet  and  assuming  the  direction  of  its 
affairs.  This  man  chooses  collaborators  with  whom  he  agrees 
or  can  come  to  an  agreement  to  the  effect  that  they  work  in 
common  for  the  realization  of  a  specific  programme.  The 
Ministry  thus  formed  is  submitted  to  the  Parliament  and 
presents  to  it  its  programme.  If  the  Parliament  accepts,  the 
Ministry  goes  to  work.  Otherwise  it  is  withdrawn.  In  any 
event  a  ministerial  crisis  resolves  itself  in  a  few  days. 

In  Germany  the  formation  of  a  Ministry  is  always  an 
extremely  complicated  affair.  Instead  of  only  two  great 
parties — which  seems  the  ideal  condition  or  at  any  rate  the 
traditional  situation  in  the  normal  functioning  of  a  parlia- 
mentary régime — there  are  in  Germany  five  or  six  parties, 
none  of  which  consists  of  a  suflBcient  number  of  members  to 
have  in  itself  a  majority.  In  addition  the  Cabinet's  difiS- 
culties  are  almost  inextricable  and  the  party  that  accepts  a 
part  in  the  ruling  power  realizes  the  risk  it  immediately  in- 
curs in  exercising  it.  Likewise  the  different  parties  do  not 
always  lend  themselves  with  good  grace  to  this  risk  and  often 
prefer  the  egoistic  attitude  and  the  convenient  rôle  of  an  oppo- 
sition rather  than  the  heavy  and  perilous  task  of  governing. 
Whereas  any  political  party  worthy  of  the  name  should  have 
an  excellent  programme  in  which  it  believes  and  should  want 
nothing  better  than  to  come  into  power  in  order  to  realize 
such  a  programme,  the  political  parties  in  Germany,  little  sure 
of  their  programmes,  prefer,  before  attempting  to  apply  them, 
to  wait  until  the  insufficiency  of  the  programmes  of  the  other 
parties  has  been  previously  demonstrated. 

When  a  ministerial  crisis  opens  there  commences  at  the 
same  time  a  period  of  difiicult  negotiations.  Each  political 
group  meets  and  discusses  the  position  it  will  take,  deciding 
whether  or  not  it  will  accept  participation  in  the  Cabinet. 


WORKING  OF  CONSTITUTIONAL  RULES     179 

The  answer  to  this  latter  question  depends  most  often  upon 
whether  certain  other  groups  will  participate  themselves  in 
power.  Then  the  trusted  men  or  the  leaders  of  the  different 
parties  meet  together  to  find  a  basis  for  agreement.  The  Presi- 
dent of  the  Reich  naturally  keeps  in  touch  with  these  negotia- 
tions; sometimes  they  are  held  in  his  presence.  The  pro- 
gramme of  the  future  Cabinet  is  discussed  and  above  all  the 
choice  of  future  Ministers.  When  an  agreement  is  reached  the 
President  of  the  Reich  makes  his  nominations.  There  was  one 
occasion,  however,  when  the  task  of  forming  the  Cabinet  was 
extremely  difiicult.  It  was  after  the  elections  of  June  6,  1920, 
which  gave  to  the  various  parties  such  a  distribution  of  numer- 
ical strength  that  no  majority  was  practically  possible  no  mat- 
ter what  combination  was  tried.  The  various  groups  met  and 
quarrelled  but  were  not  able  to  come  to  agreement.  Then  the 
President  charged  a  member  of  the  Centre,  not  to  make  up 
a  Cabinet,  but  to  serve  as  an  intermediary  between  the  various 
parties  and  to  bring  them  to  an  agreement.  It  is  from  this 
preparation  that  there  issued  the  Ministry  of  Fehrenbach. 
Thus  the  Cabinet  is  constituted  not  by  an  act,  a  free  decision 
of  the  President,  but  by  an  agreement  reached  by  the  parties. 

From  this  ensue  two  consequences: 

First,  these  crises  are  very  long.  The  one  in  which  the 
Fehrenbach  Cabinet  was  formed  lasted  nineteen  days.  In  a 
country  whose  situation  is  as  difficult  in  every  respect  as  that 
of  Germany,  such  a  lapse  of  time  without  a  Cabinet,  entirely 
taken  up  in  deliberations  and  discussions  between  politicians, 
is  obviously  a  deplorable  state  of  affairs. 

Another  consequence  is,  that  not  only  the  Ministries  are 
not  homogeneous,  which  is  the  necessary  consequence  of  the 
fact  that  no  party  has  a  majority  in  the  Reichstag,  but  also 
they  are  heterogeneous  in  a  fixed  and  invariable  manner.  To 
constitute  a  Cabinet  there  must  be  observed  a  triple  rule. 
First,  Ministers  must  be  taken  from  the  various  political 
parties  that  enter  the  Cabinet;  those  individuals  who  are  not 


180  THE  GERMAN  CONSTITUTION 

members  of  the  Reichstag  being  chosen  from  among  the  mem- 
bers of  the  party  represented  in  the  National  Assembly.  Sec- 
ondly, each  party  has  the  right  to  a  number  of  Ministers  pro- 
portional to  the  number  of  its  members  in  the  Reichstag. 
The  only  exception  to  this  rule  is  that  the  number  of  mem- 
bers in  a  Cabinet  belonging  to  the  same  party  must  remain 
the  same  as  in  the  just  discarded  Ministry;  and  if  a  Minister 
is  withdrawn,  the  party  to  which  he  belongs  designates  his 
successor.  If  because  of  special  circumstances  another  polit- 
ical group  is  called  upon  to  fill  the  vacancy,  this  group  in 
return  as  compensation  to  the  other  group  cedes  one  of  the 
ministerial  seats  held  by  it.  Thirdly,  the  composition  of  a 
Ministry  must  remain  unchanged  for  the  whole  session  of 
the  legislature. 

The  first  Ministry  constituted  after  the  meeting  of  the 
Constituent  Assembly  in  Februarj^,  1919,  consisted  of  Scheide- 
mann,  its  President,  eleven  members  as  department  chiefs  and 
three  Ministers  without  portfolio.  The  parties  that  assumed 
government  in  coalition  were,  the  Social  Democrats,  who  had 
163  members  in  the  Assembly,  the  Democrats  with  74  mem- 
bers, and  the  Centre  with  89.  The  Social  Democrats  had  ex- 
actly as  many  as  the  other  two  groups  combined.  In  the 
Cabinet  of  fourteen  members,  therefore,  they  had  seven  seats, 
among  them  that  of  the  President.  The  other  seats  were  dis- 
tributed, four  to  the  Democrats  and  three  to  the  Centre.  Dur- 
ing the  entire  period  of  the  Constituent  Assembly — with  the 
exception  of  three  months  of  the  Summer  of  1919,  when 
the  Democrats,  who  did  not  want  to  sign  the  treaty  of  peace, 
remained  voluntarily  aloof — the  Ministry  and  the  Ministers 
could  change,  but  the  composition  of  the  Ministry  rested  prac- 
tically identical.  The  last  Cabinet  formed  under  this  Assem- 
bly, that  of  Hermann  Aliiller,  comprised  at  the  time  of  its  con- 
stitution, March,  1920,  eleven  Ministers,  of  whom  one  was 
without  portfolio.  And  it  was  understood  that  it  would  later 
be  completed  by  the  addition  of  three  other  Ministers  then 


WORKING  OF  CONSTITUTIONAL  RULES    181 


not  yet  designated.  Among  the  eleven  members  at  first,  there 
were  five  Social  Democrats,  three  Democrats  and  three  mem- 
bers of  the  Centre.  As  for  the  first  Ministry  constituted  after 
the  elections  of  1920,  that  consisted  of  five  members  of  the 
Centre,  among  them  Fehrenbach,  three  members  of  the  Peo- 
ple's Party  and  two  Democrats  ;  which  corresponded  approxi- 
mately to  the  respective  strengths  of  the  groups  in  the  Reichs- 
tag, viz.,  68,  62,  45  members.^ 

Generally  the  number  of  Ministers  is  variable.  Instead  of 
having  a  fixed  number  of  departments  corresponding  to  a 
rational  distribution  of  affairs,  there  are  created  or  abolished 
Ministries  according  to  the  needs  that  have  to  be  met  to  satisfy 
the  demands  of  this  or  that  political  group.  The  Scheidemann 
Ministry  had  a  Minister  of  Finance.  But  the  Bauer,  Hermann 
Miiller,  and  the  Fehrenbach  Ministries  had,  in  addition  to  a 
Minister  of  Finance,  also  a  Minister  of  the  Treasury.  On 
the  other  hand,  there  was  in  the  Scheidemann  Cabinet  a  Min- 
ister of  Economy,  Wissel,  and  a  Minister  of  Food  Supply, 
Robert  Schmidt.  These  two  Ministers  kept  their  portfohes 
in  Bauer's  Cabinet  formed  in  June,  1919.  Then  dissensions 
arising  between  Wissel  and  the  other  members  of  the  Cabinet, 
AVissel  resigned.  But  he  was  not  replaced  and  the  two  Cabi- 
net posts  were  made  one.  They  were  again  made  two,  how- 
ever, and  provided  with  distinct  titles  in  the  Cabinets  of  Her- 
mann Millier  and  Fehrenbach.  A  similar  situation  exists  in 
the  case  of  Ministers  without  portfolio,  whose  number,  when 
there  are  any,  is  variable. 

Sometimes  in  spite  of  all  possible  negotiations  and  com- 
binations the  various  groups  necessary  for  a  coalition  com- 
manding a  majority  cannot  arrive  at  an  agreement.  As  a 
government  must  nevertheless  be  finally  constituted,  this  or 
that  group,  which  has  refused  to  enter  into  the  combination, 

*  It  includes  in  addition  two  members  that  do  not  belong  to  any 
party — the  Minister  of  Foreign  Affairs  and  the  Minister  of  Transport. 


182  THE  GERMAN  CONSTITUTION 

promises  nevertheless  cither  its  support  or  its  neutrality  to 
those  who  have  had  the  imprudence  to  participate  in  the  Cabi- 
net. When  the  Fehrenbach  Cabinet  was  constituted  it  could 
only  count  on  the  vote  of  the  groups  represented  in  it  and, 
therefore,  commanded  only  200  votes  in  an  Assembly  of  466 
members.  But  the  Social  Democrats  promised  not  to  over- 
throw the  Ministry  until  the  new  elections.  The  consequence 
of  this  is  that  a  Cabinet  so  placed  is  really  not  its  own  master, 
and  this  one  had  to  yield  to  a  certain  degree  to  the  injunctions 
of  the  Social  Democrats.  But  on  the  other  hand  the  latter, 
although  they  had  refused  to  enter  the  combination,  were 
indirectly  responsible  for  the  acts  of  the  Ministry  so  long  as 
they  tolerated  them  in  power. 

When  the  necessary  agreements  are  concluded,  the  Ministry 
appears  before  the  Reichstag.  It  reads  its  declaration  and 
programme  and  a  grand  political  discussion  commences.  But 
the  programme  having  been  in  advance  submitted  to  the 
groups,  sometimes  even  corrected  and  redrawn  at  inter-group 
meetings,  the  Ministry  is  sure  of  a  majority  and  the  discourses 
are  only  manifestos  by  which  each  party  explains  why  it 
is  for  or  against  the  Ministry. 

(2)  Parliamentary  government,  in  practice,  may  take  one  of 
two  different  forms  :  government  by  the  Cabinet  or  government 
by  the  Assembly.  In  a  government  by  a  Cabinet,  it  is  the 
Council  of  Ministers  that  governs  and  it  is  they  who  give  the 
direction  of  general  policy.  It  is  the  guide  and  the  superior 
of  the  Assembly  whose  confidence  supports  it.  On  the  other 
hand,  one  calls  it  government  by  the  Assembly  when  the  Min- 
istry is  limited  to  executing  the  decisions  of  the  Parliament 
and  to  following  the  initiative  of  the  latter. 

In  Germany,  while  it  cannot  be  said  that  the  Reichstag 
exercises  considerable  authority  over  them,  it  seems  that  the 
Ministers  take  little  initiative  and  that  they  content  them- 


WORKING  OF  CONSTITUTIONAL  RULES     183 

selves  most  often  with  following  the  direction  given  them  by 
the  Assembly.  It  is  the  agreement  that  prevailed  at  the  for- 
mation of  the  Cabinet  that  continues  as  a  policy.  The  Min- 
isters are  either  the  presidents  of  the  respective  political 
groups,  or  else  have  been  nominated  by  these  groups.  How, 
therefore,  can  they  be  completely  independent?  There  are 
here  some  factors  analogous  to  what  one  called  in  France  "the 
bloc  of  the  Left"  under  Minister  Combes.  All  the  impor- 
tant measures  are  first  discussed  between  the  government  and 
the  groups  and  the  Ministry  does  not  act  except  in  agreement 
with  the  groups  of  the  majority.  Instead  of  placing  itself 
at  the  head  of  the  majority  and  assuming  the  responsibility 
for  the  measures  which  it  feels  necessary  to  take,  the  Cabinet 
comes  to  an  understanding  with  it.  Perhaps  it  cannot  be  said 
that  it  follows  the  directions  given  it  by  the  majority.  But 
it  does  not  act,  in  any  event,  unless  it  is  first  assured  of  the 
majority's  support.  Perhaps,  also,  in  the  critical  circum- 
stances which  Germany  is  traversing  and  given  the  manner 
in  which  its  groups  are  organized,  it  is  impossible  to  do  other- 
wise. The  head  of  a  Cabinet  appointed  by  the  chief  of  the 
executive  power  on  a  programme  given  him  for  the  realization 
of  this  programme,  may  act  with  independence,  if  this  pro- 
gramme creates  its  own  majority.  Even  if  it  cannot  command 
a  stable  majority,  it  can  lean  on  some  of  the  minority  groups 
and,  according  to  circumstances,  may  create  different  major- 
ities. There  are  acts  which  no  one  can  criticize  and  there  are 
successes  which  nullify  opposition.  But  such  is  not  the  case  in 
Germany,  where  the  Ministry  has  to  abide  by  the  contract 
which  prevailed  at  its  organization. 

(3)  The  preceding  remarks  suffice  to  explain  the  follow- 
ing fact:  since  the  establishment  of  the  parliamentary  régime 
in  Germany  no  Ministry  has  ever  been  overturned  by  the 
Reichstag.  How  can  it  be,  if  it  conforms  to  the  condition  of 
its  agreement  and  if,  before  each  hazardous  decision,  it  assures 


184  THE  GERMAN  CONSTITUTION 

itself  the  approval  of  the  majority?  On  the  other  hand,  if 
it  cannot  obtain  this  approval,  or  if  it  does  not  want  to  accept 
the  policy  desired  by  the  majority  groups,  why  should  it  go 
before  the  Assembly  and  engage  in  a  battle  lost  in  advance? 
It  resigns. 

The  Ministry,  therefore,  is  never  overthrown;  it  retreats,  or 
more  correctly,  it  does  not  retreat,  but  changes.  The  number 
of  men  available  for  a  Ministry  is  very  limited  and  the  groups 
present  almost  always  the  same  men.  There  is  in  advance 
a  certain  knowledge  as  to  who  the  men  are  who  will  enter  a 
Cabinet  as  soon  as  one  knows  what  groups  will  participate  in 
the  formation.  Further,  the  possibilities  of  combinations 
within  a  given  Chamber  are  limited  enough.  From  the  begin- 
ning of  February,  1919,  only  four  groups  have  participated  in 
power,  of  these  the  People's  Party  participated  only  after 
June,  1920.  It  is  inevitable,  therefore,  that  in  each  new  com- 
bination there  remain  at  least  two  groups  which  already  be- 
longed to  the  preceding  one.  Quite  naturally  these  groups 
leave,  without  exception,  the  same  men  in  power.  Why  change? 
An  important  part  of  the  preceding  Ministry,  therefore,  is 
maintained  in  each  new  Ministr5\ 

In  June,  1919,  Scheidemann's  Cabinet,  which  consisted  of 
Social  Democrats,  Democrats  and  members  of  the  Centre,  was 
replaced  by  Bauer's  Cabinet,  in  which  only  the  Centre  and 
the  Social  Democrats  entered.  The  members  of  these  two 
groups  which  were  in  the  Scheidemann  Cabinet  remained  in 
the  Bauer  Cabinet  and  it  was  sufficient  to  replace  with  mem- 
bers of  these  two  groups  the  vacancies  left  by  Scheidemann 
and  the  Democrats.  In  March,  1920,  Bauer's  Cabinet,  into 
which  the  Democrats  entered  in  October,  1919,  attempted  a 
new  change  after  the  cowp  d'état  of  Kapp.  Conferences  took 
place,  in  which  took  part  the  President  of  the  Reich,  the  Min- 
isters and  representatives  of  parties,  in  which  was  discussed 
the  question  as  to  which  Ministers  should  remain  and  which 
must  go. 


WORKING  OF  CONSTITUTIONAL  RULES    185 

The  more  the  discussion  was  prolonged,  the  greater  grew 
the  number  of  Ministers  to  remain.  But  the  unions  inter- 
vened and  demanded  the  resignation  of  the  whole  Cabinet. 
Bauer  acceded.  Nevertheless  the  Cabinet,  which  was  there- 
upon constituted  by  Hermann  Miiller,  retained  several  mem- 
bers of  the  preceding  Cabinet,  notably  Hermann  Millier  him- 
self, who  from  Minister  of  Foreign  Affairs  became  Chancellor, 
and  Bauer,  who  from  Chancellor  became  Minister  of  the 
Treasury.  The  same  procedure  took  place  in  the  constitution 
of  the  Fehrenbach  Cabinet.  It  was  expected  that  a  Ministry 
coming  after  elections  that  expressed  a  considerable  change 
in  the  political  situation,  and  after  the  Social  Democrats  with- 
drew from  power  and  the  People's  Party  arrived,  would  trans- 
late this  change  by  a  more  profound  modification  than  usual 
of  the  Cabinet.  But  out  of  thirteen  members  five  had  been 
members  of  the  preceding  Cabinet. 

It  does  not  seem,  therefore,  that  the  attempt  made  by  the 
Constitution  to  regulate  as  precisely  as  it  may  be  done  the 
functioning  of  the  government  of  the  Cabinet  has  had  up  to 
now  any  appreciable  effect  on  the  practice  of  parliamentarism. 
Germany  begins  at  a  point  that  other  countries,  in  which 
parliamentary  government  has  operated  for  years,  have  hardly 
attained,  if  they  have  at  all  attained  it.  A  concentrated 
Cabinet,  a  Cabinet  of  republican  defence,  a  Cabinet  of  tran- 
sition, a  bloc  of  the  Centre — are  these  accidental  deformities 
of  the  parliamentary  régime,  or  are  they  forms  toward  which 
it  must  necessarily  tend?  We  are  told  in  Germany  that  these 
practices,  obviously  little  compatible  with  the  conception  of 
parliamentarism  or  with  the  regulations  provided  in  their 
Constitution,  are  to  be  explained  by  the  state  of  revolution 
in  which  the  country  still  finds  itself;  and  that  they  will  dis- 
appear if  some  day  Germany  recovers  its  equilibrium,  and 
make  place  for  a  correct  and  complete  application  of  consti- 
tutional rule. 


186  THE  GERMAN  CONSTITUTION 

SECTION  IV 

THE  REICHSRAT 

The  Reichsrat  is  placed  by  the  Constitution  by  the  side 
of  the  Reichstag,  the  President  and  the  Cabinet,  and  has  as 
its  rôle  the  representation,  after  these,  of  the  States  of  the 
Reich  in  legislative  and  administrative  matters. 

1. — GENERAL  FEATURES  OF  THE  REICHSRAT. 

The  Reichsrat  constitutes  a  bond  of  co-operation  between 
the  Reich  and  the  States.  Whereas  the  will  of  the  whole 
German  people  taken  together  is  manifested  through  the 
Reichstag,  the  Reichsrat  translates  the  will  of  the  States, 
such  as  it  is  conceived  by  the  governments  or  cabinets  of 
these  States. 

The  Reichsrat  is  the  representative  in  the  Reich  of  the 
federalist  principle.  It  is  the  federalist  organ  of  the  Reich. 
In  this  rôle  it  joins  the  unitary  organs  and  completes  them. 

The  Reichsrat  is  the  successor  of  the  Commission  of  States 
of  the  Provisional  Constitution  and  of  the  Bundesrat  of  the 
old  Constitution.  But  as  the  unitary  idea  made  important 
progress,  the  Reichstag  was  endowed  with  powers  consider- 
ably less  extensive  than  those  of  the  Bundesrat.  The  latter, 
which  represented  the  confederated  governments  collectively, 
was  the  holder  of  sovereignty  under  the  Empire.  The 
Reichsrat,  on  the  other  hand,  since  the  new  Constitution 
placed  sovereignty  in  the  German  people,  is  only  an  organ 
by  which  the  governments  of  the  states  participate  in  the 
legislative  and  administrative  powers  of  the  Reich.  Instead 
of  being  endowed,  as  compared  to  the  Reichstag,  with  powers 
equal  or  superior  to  it,  as  the  former  Bundesrat  was,  it  has 
received  but  very  limited  rights. 

The  question  whether  it  would  not  have  been  better  to 
organize  instead  of  the  Reichsrat  a  Chamber  of  States,  which 


THE  REICHSRAT  187 

would  represent,  not  the  various  cabinets,  but  the  popula- 
tions of  the  states,  was  vigorously  debated.  It  may  be  re- 
called that  it  was  this  solution  Preuss  proposed:  a  Chamber 
of  States  composed  of  delegates  of  German  republics.  These 
delegates  would  be  elected  by  the  Diets  of  the  republics  and 
would  be  selected  from  among  the  citizens  of  these  republics. 
In  principle,  each  state  would  have  a  delegate  for  each  million 
inhabitants. 

Such  an  organism  would  constitute  a  very  characteristic  ap- 
plication of  the  centralist  idea.  But  it  was  thought  that  this 
would  create,  by  the  side  of  the  Reichstag,  a  new  popular 
representation,  and  that  this  would  not  take  into  account  the 
necessity  of  organizing  a  representation  of  states.  What  was 
needed  actually  was  the  creation  of  an  organ,  within  which 
would  be  realized  an  equilibrium  between  the  voices  and  the 
needs  of  the  Reich  on  the  one  hand  and  the  voices  and  the 
needs  of  the  states  on  the  other;  if  it  was  not  wished  to  sup- 
press completely  the  federal  structure  of  the  Reich  and  make 
of  it  simply  a  unitary  state.  This  organism  would  have  to 
include  technical  and  vocational  representatives  of  the  in- 
terests of  the  states,  leaving  aside  the  idea  of  parties  and  all 
the  programmes  of  parties.  That  is  to  say,  there  would  have 
to  be  representatives  of  the  governments  of  the  states,  not 
merely  political  representatives.  The  National  Assembly  de- 
cided on  a  Reichsrat  organized  on  the  model  of  the  former 
Bundesrat,  representing  the  governments  of  the  states  and 
endowed  with  less  extensive  powers. 

The  Reichsrat  differs  profoundly  as  to  authority  from  the 
old  Bundesrat.  It  has  lost  completely  the  sovereign  charac- 
ter of  the  Bundesrat.  It  has  not  even  the  right  to  issue 
administrative  regulations,  this  right  having  been  taken  away 
from  it  and  given  to  the  Cabinet.  It  has  ceased  to  be,  in 
comparison  with  the  Reichstag,  a  legislative  organ  invested 
with  rights  equal  to  those  of  the  Reichstag;  and  it  has  no 


188  THE  GERMAN  CONSTITUTION 


more  than  a  very  limited  right  to  co-operate  with  it  in  legis- 
lative work. 

This  institution,  therefore,  comprehends  both  historic  tradi- 
tion and  the  actual  situation  of  the  Reich.  But  it  marks  at 
the  same  time  a  progress  in  the  sense  of  a  stronger  unity  of 
the  Reich,  and  it  should  in  the  future  facilitate  a  new  develop- 
ment of  the  unitary  idea. 

2. — THE  COMPOSITION   AND  THE  FUNCTIONING  OF  THE 
REICHSRAT. 

"In  the  National  Council  each  State  has  at  least  one  vote. 
In  the  case  of  the  larger  States  one  vote  is  accorded  for  every 
million  inhabitants.  Any  excess  equal  at  least  to  the  popu- 
lation of  the  smallest  State  is  reckoned  as  equivalent  to  a 
full  million.  No  State  shall  be  accredited  with  more  than 
two-fifths  of  all  votes."     (Article  61.) 

The  original  proposal  provided  that  three  years  after  the 
Constitution  had  entered  into  effect,  small  Stat€S  having  less 
than  a  million  inhabitants  would  lose  their  right  to  be  repre- 
sented in  the  Reichsrat.  The  obvious  purpose  of  this  pro- 
vision was  to  compel,  by  indirect  means,  the  small  States  to 
join  together,  as  well  as  to  prevent  the  unnecessary  parcelling 
out  of  territories  with  the  view  of  creating  new  States.  This 
measure,  however,  was  not  accepted  by  the  committee.  We 
know  that  in  its  place  the  committee  and  the  National  Assem- 
bly accepted  a  resolution  inviting  the  government  to  interpose 
in  the  hope  of  realizing  a  union  of  small  States.^ 

*  Article  64  provided  also  that  after  the  reunion  of  Austria  with 
the  German  Reich  the  latter  would  have  the  right  to  be  represented 
in  the  Reichstag  numerically  in  proportion  to  the  size  of  its  population. 
Until  such  union  the  representatives  of  German  Austria  would  have 
only  a  consultative  voice.  This  provision,  contrary  both  in  letter  and 
spirit  to  Article  80  of  the  Peace  Treaty,  brought  a  protest  from  the 
Supreme  Council  of  the  Allied  Powers  and  their  associates.  The  first 
note  on  September  2,  1919,  demanded  the  abolition  of  the  offending 
provision  by  constitutional  amendment  within  a  fortnight.  On  Sep- 
tember 5,  the  German  government  replied  that  no  article  of  the  Con- 
stitution  could   be   in   contradiction   with   the   Treaty    of   Peace,   for 


THE  COMPOSITION  OF  THE  REICHSRAT    189 

An  early  distribution  of  seats,  after  the  adoption  of  the 
Constitution,  on  the  basis  of  Article  61,  gave  to  Prussia 
twenty-five  votes  out  of  the  total  of  sixty-three  in  the  Reichs- 
rat.  But,  as  we  know,  after  May,  1920,  seven  small  states  of 
Central  Germany  formed  the  State  of  Thuringia,  which  had 
1,584,324  inhabitants  and  was  entitled  to  two  votes.  By 
this  the  number  of  non-Prussian  votes  in  the  Reichsrat  was 
reduced  by  five,  which  also  diminished  the  number  of  votes 
coming  from  Prussia  from  its  former  twenty-five  to  twenty- 
two.  So  long  as  no  new  changes  in  the  interior  geographic 
configuration  of  the  Reich  are  made,  the  distribution  of 
votes  in  the  Reichsrat  will  be  as  follows:  Prussia,  twenty-two; 
Bavaria,  seven;  Saxony,  five;  Wurtemberg,  three;  Baden, 
three;  Hesse,  two;  Thuringia,  two;  other  States,  one  each. 
Total,  fifty-five. 

The  States  are  represented  by  members  of  their  Cabinets. 
So  it  was  under  the  old  régime.  There  is,  however,  an  essen- 
tial difference,  for  the  Cabinets  now  depend  on  the  confidence 

Article  78,  paragraph  2,  expressly  provides  that  no  constitutional  pro- 
vision may  carry  any  attempt  against  the  treaty.  This  reply  justly 
seemed  to  the  Allies  insufficient.  Article  78,  paragraph  2,  constitutes,  it 
is  tnie,  on  the  part  of  the  drafters  of  the  Constitution  an  excellent 
measure  of  precaution  against  contradictions  between  the  Constitution 
and  the  Treaty  not  provided  for  in  advance  and  revealed  in  practice. 
But  the  contradiction  pointed  out  by  the  note  of  the  Allies  of  Sep- 
tember 2  was  too  clear  and  evident  to  have  been  accidental.  The 
Allied  Powers,  therefore,  demanded  that  the  German  Government  send 
by  means  of  a  diplomatic  document  the  interpretation  contained  in 
its  note  of  September  5.  This  is  the  text,  therefore,  of  a  supplementary 
declaration  drawn  up  by  the  German  Cabinet  and  ratified  by  the 
National  Assembly: 

"The  undersigned,  duly  authorized  in  the  name  of  the  German  Gov- 
ernment, recognize  and  declare  that  all  provisions  of  the  German 
Constitution  of  August  11,  1919,  that  are  in  contradiction  with  stipu- 
lations of  the  Treaty  of  Peace  signed  at  Versailles  on  June  28,  1919, 
are  without  force,  and  that  particularly  the  admission  of  the  repre- 
sentatives of  Austria  as  members  of  the  Reichstag  cannot  be  effected 
except  if,  in  conformance  with  Article  80  of  the  Treaty  of  Peace,  the 
League  of  Nations  sanctions  a  change  in  the  international  situation  of 
Austria.  The  present  declaration  must  be  ratified  by  the  competent 
authorities  within  a  fortnight  after  the  Treaty  of  Peace  becomes  oper- 
ative." 


190  THE  GERMAN  CONSTITUTION 

in  them  of  the  Diets  elected  by  universal  suffrage.  It  is  public 
opinion  that  governs  in  the  States  now  and  no  longer  the  will 
of  an  autocratic  government,  independent  of  this  opinion. 
The  government  of  a  state  is  responsible  before  the  Diet  for 
the  manner  in  which  its  representatives  exercise  their  mandates 
in  the  Reichsrat,  whether  the  members  of  the  Cabinet  are 
themselves  present  there  or  whether  they  are  represented  by 
civil  servants.  The  former  provisions  relating  to  instructions 
given  by  Cabinets  of  States  to  their  plenipotentiaries  in  the 
Reichsrat,  as  well  as  measures  to  insure  that  the  representa- 
tives of  each  state  shall  join  in  a  common  vote,  have  become 
useless  and  have  not  been  incorporated  into  the  Constitution. 

The  provision  according  to  which  the  states  are  all  rep- 
resented by  their  Cabinets  has  been  changed,  however,  in  one 
respect.  Article  63  specifies  that  only  half  of  the  Prussian 
votes  will  be  at  the  disposal  of  the  Prussian  Cabinet,  the  other 
half  being  at  the  disposal  of  the  Prussian  provincial  adminis- 
trations. Thus  the  National  Assembly,  which  has  not  had 
the  force  to  effect  directly  a  dismemberment  of  the  Prussian 
state,  and  which  has  deferred  for  over  two  years  every  effort  to 
be  made  toward  this  end,  has  nevertheless  attempted  to  antici- 
pate this  reform.  It  seems  in  effect  that  if  the  Prussian  prov- 
inces receive  progressively  more  and  more  autonomy,  if  the 
powers  granted  to  them  become  comparable  to  the  more  and 
more  diminishing  powers  of  the  states,  the  assimilation  of 
these  provinces  to  states  other  than  Prussia  will  be  facilitated 
and  hastened  by  the  fact  that  these  provinces,  like  states,  are 
directly  represented  in  the  Reichsrat.  Each  of  them  will  be 
able  to  defend  its  own  particular  interest,  different,  perhaps, 
from  those  of  other  provinces.  Each  province,  above  all, 
will  be  able  to  defend  its  rights  and  make  its  interests  pre- 
vail when  in  conflict  with  those  of  the  Prussian  State,  whose 
dominant  centralization  will  thus  be  broken. 

This  solution  is  not  entirely  satisfactory,  for  the  regroup- 
ing which  must  be  proceeded  to  in  the  Reich  must  be  inspired 


THE  COMPOSITION  OF  THE  REICHSRAT    191 

above  all  by  social  and  economic  considerations.  And  it 
must  have  as  its  aim  the  creation  of  an  autonomous  body 
capable  of  self-development  and  productivity.  Above  all  in 
this  work,  the  historic  frontiers  of  the  States  must  be  disre- 
garded since  these  frontiers  have  been  drawn  to  satisfy 
dynastic  interests  or  to  conclude  victorious  wars.  What  is 
true  of  the  interior  of  the  Reich  is  also  true  of  Prussia.  The 
Prussian  provinces  are  not  natural  organisms  in  whose  inter- 
ests there  should  be  created  and  developed  a  political  life. 

Still,  Article  63,  for  lack  of  other  provision,  constitutes 
progress,  which,  however,  does  not  seem  as  yet  to  be  near 
realization.  This  Article  provides,  in  effect,  that  the  manner 
in  which  Prussian  votes  at  the  disposal  of  the  provinces  shall 
be  distributed  must  be  regulated  by  a  Prussian  State  Law; 
and  Article  168  provides  that  until  the  adoption  of  this  law 
but,  at  the  most  for  only  a  year,  all  the  Prussian  votes  in  the 
Reichsrat  may  be  cast  by  members  of  the  State  Cabinet.  This 
law  should  already  have  been  adopted  and  applied.  This 
has  not  been  done,  however,  and  the  Prussian  government  has 
asked  and  obtained  a  modification  of  Article  168,  which  pro- 
longs the  delay  accorded  to  Prussia  and  gives  it  till  July  1, 
1921,  to  pass  this  law.  In  support  of  this  request  Prussia 
claimed  that  the  reduction  of  its  total  number  of  votes  in  the 
Reichsrat  to  twenty-two  made  the  distribution  of  this  number 
among  the  provinces  more  difficult.  In  reality,  however,  the 
Prussian  government  under  the  Republic  remains  true  to  its 
traditional  tactics,  which  consist  in  opposing  all  development 
and  progress  by  means  of  the  most  obstinate  passivity.  Until 
the  new  state  of  representation  is  adopted  the  twenty-two 
Prussian  votes  will  be  cast  by  the  members  of  the  Prussian 
Cabinet  or  by  delegates  named  by  it. 

The  Reichsrat  has  the  right  to  create  its  own  committees.^ 

*The  cominittoes  thus  formed  are  eleven  in  number  and  each  con- 
sists of  nine  members.  They  are,  committees  on  foreign  affairs,  political 
economy,  interior  administration,  commerce  and  audits,  taxes  and  eus- 


192  THE  GERMAN  CONSTITUTION 

But  the  privileges  which  certain  states,  particularly  Prussia, 
enjoyed  in  the  committees  of  the  old  Bundesrat  are  sup- 
pressed; particularly  as  no  state  may  hereafter  have  more 
than  one  vote  on  any  committee.  (Article  62.)  The  Reichs- 
rat,  in  contrast  to  the  Reichstag,  has  not  the  right  freely  to 
convene.  It  must  be  convoked  by  the  Cabinet  of  the  Reich. 
Nevertheless,  it  has  a  right  to  convoke  itself  if  the  demand 
is  made  by  a  third  of  its  members.  It  is  the  Cabinet  that 
presides  over  the  Reichsrat  and  its  committees;  but  the 
Cabinet  has  not  the  right  to  vote  in  either  of  these.  The 
Reichsrat  has  the  right  and  the  power  to  demand  that  the 
members  of  the  Cabinet  be  present  at  its  meetings  or  at  the 
meetings  of  its  committees.  It  may  invite  there  the  Chan- 
cellor and  the  Ministers  and  the  latter  are  obliged  to  attend. 
Those  invited  have  the  right  at  all  times  to  be  heard  in  the 
deliberations.  By  this  means  the  Reichsrat  has  the  possi- 
bility of  participating  in  the  policies  of  the  Reich.  It  is  true 
that  no  fixed  influence  is  guaranteed  to  it  by  the  Constitution. 
What  authority  it  will  be  able  to  exercise  in  the  future  will 
depend  on  the  quality  of  its  work  and  on  the  personalities 
by  which  the  states  will  be  represented.  The  Cabinet  of  the 
Reich,  like  all  the  members  of  the  Reichsrat,  is  authorized  to 
propose  measures  in  the  Reichsrat.  The  plenary  sessions  of 
the  latter,  in  contrast  to  those  of  the  Bundesrat,  are  theoretic- 
ally public;  its  committee  meetings  are  not.  Decisions  are 
made  by  a  simple  majority  of  those  voting. 

3. — POWERS  OF  THE  EEICHSRAT. 

The  former  Bundesrat  was  an  organ  which  had  in  legisla- 
tive matters  the  same  rights  as  the  Reichstag.  It  exercised  in 
addition  important  executive  functions;  in  particular  it  had 
the  right  to  promulgate  general  administrative  regulations 
for  executing  the  laws  of  the   Reich.     It  was  the   central 

toms,  justice,  the  Constitution  and  interior  regulation,  the  army,  navy, 
and  the  execution  of  the  Treaty  of  Peace. 


POWERS  OF  THE  REICHSRAT  193 

administrative  authority  in  matters  relating  to  customs  and 
taxes.  It  decided  conflicts  of  a  constitutional  character  as 
well  as  miscarriages  of  justice.  Of  all  these  powers  few  have 
descended  to  the  Reichsrat.  In  order  to  emphasize  the  idea 
of  the  unity  of  the  Reich  and  of  the  sovereignty  of  the  whole 
German  people  in  the  Reich,  the  new  Constitution  limits  to  a 
considerable  extent  the  powers  of  the  Reichsrat.  However,  it 
has  left  it  a  certain  right  to  participate  in  the  making  of  laws 
and  in  the  exercise  of  executive  power. 

In  legislative  matters,  it  will  be  recalled,  that  all  proposals 
of  laws  on  the  part  of  the  Cabinet  must  be  presented  at  first 
to  the  Reichsrat;  in  theory,  must  be  accepted  by  it  before 
being  submitted  to  the  Reichstag.  But  as  we  know  this  con- 
sent is  not  indispensable  and  the  government  may  disregard 
it.  It  will  be  recalled  also  that  the  Reichsrat  has  the  right 
to  protest  against  any  law  voted  by  the  Reichstag;  but  that 
it  may  have  its  protest  disregarded  under  certain  conditions. 

Already  the  Reichsrat  has  made  use  of  its  right  of  protest. 
That  was  done  in  connection  with  a  bill  that  raised  postal 
taxes.  The  National  Assembly,  acting  in  the  character  of 
the  Reichstag,  had  voted  a  provision  according  to  the  terms 
of  which  the  sending  by  mail  of  official  documents  would  have 
to  be  paid  for,  no  longer  by  him  who  received  them,  but  by  the 
sender.  The  representatives  of  Prussia,  Bavaria  and  of  Sax- 
ony criticized  in  the  Reichsrat  this  measure,  and  found  sup- 
port in  the  Assembly  to  the  extent  of  a  majority  of  thirty- 
eight  votes.  Whereupon  the  Reichsrat  raised  a  protest  against 
this  measure,  April  29,  1920.  The  bill  then  returned  to  the 
National  Assembly;  but  the  conflict  ended  with  a  compro- 
mise, without  recourse  to  the  procedure  provided  by  the 
Constitution  for  such  a  case. 

The  Reichsrat  still  possesses  some  executive  powers.  On 
the  one  hand,  the  Constitution  and  the  law  frequently  stipu- 
late that  a  regulation  by  the  Cabinet  of  the  Reich  must  be 
authorized  by  the  Reichsrat.     On  the  other  hand,  the  law 


194  THE  GERMAN  CONSTITUTION 

of  April  17,  1919,  "for  a  simplified  form  of  legislation  on 
economic  matters"  provides  that  regulations  decreed  by  the 
Cabinet  in  this  matter  must  be  approved  both  by  the  Reichs- 
rat  and  by  a  committee  of  twenty-eight  members  of  the 
Assembly.  The  Reichsrat  and  the  Committee  have  in  this 
case  absolutely  equal  rights.  Finally  Article  67  provides  that 
the  Reichsrat  must  be  kept  informed  by  the  national  depart- 
ments of  the  conduct  of  national  business. 


CHAPTER    V 

FUNDAMENTAL    RIGHTS    AND    DUTIES 
OF    GERMANS 

The  second  part  of  the  Constitution  of  Weimar  is  devoted 
entirely  to  the  fundamental  rights  and  duties  of  Germans.  It 
is  the  Declaration  of  Rights  of  the  new  Germany.  Aside  from 
several  articles  relating  exclusively  to  the  economic  organiza- 
tion of  the  Reich,  the  five  sections  of  this  part  contain  a  long 
enumeration  of  the  rights  and  duties  granted  to  or  imposed 
on  the  Germans.  To  enter  into  details  of  this  enumeration 
would  be  to  undertake  a  study  of  all  of  German  public  and 
private  law.  Nevertheless  an  attempt  must  be  made  to  out- 
line the  principal  ideas. 

1. — LEGAL  AND  POLITICAL  ASPECTS  OF  FUNDAMENTAL  RIGHTS 
AND  DUTIES. 

The  articles  relative  to  fundamental  rights  and  duties,  dur- 
ing the  discussion  of  the  draft  of  the  Constitution,  were  the 
subjects  of  lively  differences  of  opinion.  It  was  questioned 
whether  it  was  necessary  and  useful  to  insert  such  provisions 
into  the  Constitution  ;  moreover,  every  one  of  these  provisions 
one  after  another  was  debated.  The  Bismarckian  Constitution 
of  1871  contains  no  declaration  of  rights.  On  the  other  hand, 
the  drafters  of  the  Constitution  of  1849  proposed  such  a  great 
number  of  fundamental  rights  and  applied  themselves  with 
such  complacence  to  the  elaboration  of  these  rights  that  the 
Constituent  Assembly  of  that  time  was  unable  to  make  itself 
heeded,  and  this  defeat  contributed  largely  to  the  defeat  of 
the  whole  of  the  project  of  such  rights. 

195 


196  THE  GERMAN  CONSTITUTION 

The  first  proposal  of  the  Cabinet  following  the  tradition  of 
the  proposal  of  1849  and  also  the  Declaration  of  Rights  of 
the  French  Revolution,  as  well  as  of  the  American,  Belgian 
and  Prussian  Constitutions,  enumerated  in  a  few  paragraphs 
several  essential  legal  principles  and  enunciated  some  fun- 
damental dogmas  which  have  been  considered  for  a  century 
and  in  all  civilized  countries  as  self-evident  truths.  But  in 
the  Constitutional  Committee  the  discussion  went  far  beyond 
these  generalities.  Desirous  of  creating  an  intellectual  back- 
ground in  which  justice  and  administration  would  have  to  op- 
erate, desiring  also  to  furnish  in  the  form  of  some  suggestive 
maxims  a  guide  for  the  conduct  of  some  of  the  most  important 
matters  in  the  legal  domain,  and  to  furnish  a  solid  foundation 
for  the  juridical  culture  of  the  German  people,  the  members 
of  the  Constitutional  Committee  nominated  a  sub-committee, 
which  prepared  a  new  draft  whose  provisions  w^ere  embodied 
in  the  draft  of  the  Cabinet,  in  different  bills  prepared  on 
private  initiative,  as  well  as  in  the  new  Constitutions  of  Baden 
and  Wurtemberg.  In  the  drawing  up  of  this  new  draft  the 
principal  rôle  was  played  by  Beyerle,  member  of  the  Centre. 

In  the  course  of  the  discussions  in  sub-committee,  in  Com- 
mittee, as  well  as  in  plenary  session,  three  currents  appeared. 
Some  wanted  to  suppress  drastically  all  declarations  of  rights 
in  the  Constitution  of  the  Reich;  for  they  saw  in  these  prin- 
ciples no  stable  system,  but  only  a  collection  of  "declarations 
and  declamations,"  to  which  were  joined  some  legal  maxims 
figuring  already  in  other  laws.  Others  wanted  to  retain  the 
system  embodied  in  the  cabinet  draft,  adding  to  it,  however, 
several  provisions  to  assure  the  protection  of  the  rights  ac- 
quired for  religious  denominations.  A  third  group,  among 
whom  principally  was  Frederick  Naumarm,  held  that  the 
cabinet  draft,  even  thus  extended,  was  retrogression  and  did 
not  correspond  to  the  actual  development  of  German  culture. 
They  demanded  that  there  be  substituted  for  it  a  declaration 
of  fundamental  rights  which  would  constitute  a  recognition 


LEGAL  AND  POLITICAL  ASPECTS         197 

of  the  principal  ideas  that  characterize  the  most  recent  devel- 
opment of  this  culture. 

The  Constitutional  Committee,  and  after  it  the  National 
Assembly  itself,  adopted  a  middle  course.  The  propositions 
by  Naumann  as  a  whole  were  rejected;  and  it  was  decided 
not  to  inscribe  in  the  Constitution,  in  political  sentences  and 
aphorisms  without  any  legal  content,  a  complete  and  solemn 
recognition  of  the  directing  ideas  of  the  present  and  of  the 
future.  Nevertheless  there  would  be  inserted  in  the  Constitu- 
tion a  certain  number  of  political  maxims  and  of  "programme 
thoughts."  This  done,  the  Constituent  Assembly  wished,  in 
the  words  of  Diiringer,  to  give  a  foundation  to  the  existing 
legal  culture,  and  to  furnish  a  mirror  to  German  juridical  life, 
and  at  the  same  time  afford  a  programme  for  future  juridical 
development.  In  addition  the  principles  voted,  since  they 
would  figure  in  the  text  of  the  Constitution,  would  have  to 
be  placed  under  the  express  guarantee  of  the  Constitution  and 
thus  become  part  of  the  fundamental  law  of  the  Reich.  The 
Assembly  hoped,  finally,  that  these  articles  would  exercise  a 
certain  educational  function.  They  would  constitute  the  basis 
of  the  civic  and  political  education  of  the  people.  The  fun- 
damental rights  would  have  to  be  not  only  "the  keystone  of 
the  edifice,  but  must  also  become  the  substance  whereby  the 
Constitution  would  live." 

This  was  a  magnificent  programme;  unfortunately  it  was 
difficult  to  carry  it  out  and  the  most  severe  criticisms  were 
rightly,  it  seems,  made  against  the  manner  in  which  it  was 
carried  out. 

When  the  articles  relating  to  the  fundamental  rights  and 
duties  were  being  drawn  up,  the  members  of  the  National 
Assembly  of  necessity  remained  party  men,  and  were  guided, 
even  when  they  voted  on  philosophico-legal  questions,  by 
party  considerations.  Also  some  of  these  "fundamental 
rights"  had  the  appearance  of  being  simply  extracts  from  pro- 
grammes or  brochures  of  political  parties.    On  the  other  hand, 


108  THE  GERMAN  CONSTITUTION 

the  members  who  drew  them  up  naturally  put  in  the  fore- 
ground the  problems  which,  at  the  time  of  the  discussions,  were 
the  burning  questions  in  both  Parliament  and  in  public  opin- 
ion. The  result  is  that  the  second  part  of  the  Constitution 
regulates  questions  of  the  day  rather  than  of  the  future,  and 
issues  prescriptions  for  circumstances  more  than  it  proclaims 
fundamental  rights. 

However,  all  this  would  have  been  admissable,  if  there  had 
been  one  big  party  that  could  have  without  constraint  and 
without  difficulty  incorporated  its  own  principles  in  the  Con- 
stitution; or  even  if  there  had  been  two  or  more  parties  with 
fairly  similar  conceptions,  which  were  able  to  agree  on  fun- 
damental rights.  There  would  have  been  at  least  a  Declara- 
tion of  Rights  that  might  have  corresponded  to  the  conceptions 
of  the  majority.  But  there  was  no  such  majority  in  the 
National  Assembly.  To  be  sure,  there  was  an  impressive 
majority  that  agreed  on  a  democratic  Constitution.  But  on 
questions  of  schools,  church,  the  family,  and  of  economic  and 
agrarian  reforms — questions  that  had  to  be  dealt  with  in  the 
statement  of  fundamental  rights — there  was  in  the  National 
Assembly  and  in  the  parties  of  the  majority  such  divergence 
of  opinion  that  it  was  impossible  to  construct  of  it  any  logical 
or  coherent  edifice.  Also,  in  reading  each  provision  of  the 
fundamental  rights,  one  can  guess  which  party  has  furnished 
the  first  part  of  a  phrase  and  which  the  second.  When,  for 
example,  referring  to  property  one  reads,  "The  right  of  prop- 
erty is  guaranteed  by  the  Constitution.  Its  nature  and  limits 
are  defined  by  law";  or,  when  in  Article  152  a  phrase  declares, 
"There  is  an  economic  liberty  in  the  measure  indicated  by  the 
law,"  every  one,  no  matter  what  may  be  his  personal  concep- 
tions, may  find  himself  entirely  satisfied,  according  to  whether 
the  first  or  the  last  words  of  each  provision  are  emphasized. 
This  evident  compromise  between  the  political  parties  on 
political  conceptions  so  widely  divergent  was  emphatically 
pointed  out  by  Member  of  the  Assembly  Koch,  who  charac- 


LEGAL  AND  POLITICAL  ASPECTS         199 

terized  the  fundamental  rights  as  "an  interfractional  political 
programme."  ^ 

From  the  legal  point  of  view,  the  defects  of  this  programme 
are  no  less  serious.  It  is  extremely  diflBcult,  if  not  impossible, 
to  know  what  authority  and  what  meaning  should  be  attached 
to  the  fundamental  rights.  What  precisely  does  such  a  phrase 
as  one  in  Article  109  mean?  "Privileges  or  discriminations 
due  to  birth  or  rank  and  recognized  by  law  are  abolished." 
Does,  again,  the  provision  in  Article  115,  according  to  which 
"The  house  of  every  German  is  his  sanctuary  and  is  invio- 
lable," prevent  a  commissioner  of  buildings  from  dividing 
spacious  lodgings  in  order  to  combat  a  housing  crisis? 

What  is  still  more  regrettable  is  that  the  Constitution  never 
specifies  to  what  extent  the  fundamental  rights  have  or  have 
not  legal  force.  Do  all  previously  enacted  laws  that  are 
irreconcilable  with  fundamental  rights  in  the  Constitution 
cease  to  operate  the  moment  the  Constitution  comes  into 
force?  Should  not  this  solution  be  applicable  only  to  laws 
enacted  after  the  adoption  of  the  Constitution  and  for  such 
of  their  provisions  as  are  contrary  to  the  Constitution?  Or 
must  it  be  interpreted  that  the  fundamental  rights  have  no 
importance  other  than  to  constrain  legislatures  to  subject 
existing  legislation  to  the  principles  these  rights  proclaim, 
and  to  vote  only  for  laws  that  conform  to  these  principles? 
Finally,  are  not  these  fundamental  rights  merely  general  indi- 
cations which  may  be  expected  to  have  such  moral  force 
as  they  can  impose  on  the  legislature? 

It  was  attempted  to  bring  some  clarity  into  the  chaos  of  the 
discussions  on  this  head.  At  first  a  proposal  was  made  ac- 
cording to  which  any  one  had  the  right  to  complain  before  a 
tribunal  of  all  injurious  violations  of  fundamental  rights.  This 
was  rejected;  for  otherwise  any  one  belonging  to  the  middle 
classes  could  complain  on  the  basis  of  the  provision  of  Article 

*  See  Koch,  Die  Grundrechte  in  der  Verfassung,  Deutsche  Juristen 
Zeilung,  1919,  p.  G09,  ct  scq. 


200  THE  GERMAN  CONSTITUTION 

164,  according  to  which  "The  independent  .  .  .  middle-class 
shall  be  fostered,"  and  claim  that  the  provision  was  a  dead 
letter.  There  was  voted,  however,  on  the  first  reading  a  pro- 
vision according  to  which  the  fundamental  rights  would  con- 
stitute "a  course  and  a  limitation  for  legislation,  administra- 
tion, and  jurisprudence  in  the  Reich  and  in  the  States."  This 
phrase  would  have  increased,  without  any  possible  ambiguity, 
the  immediate  legal  efiBcacy  of  the  fundamental  rights.  It 
was,  however,  done  away  with  at  the  second  reading,  for  it 
would  not  have  been  applicable  except  to  provisions  which 
have  a  positive  content,  and  it  would  have  had,  aside 
from  this,  only  the  character  of  an  abstract  maxim  for  scho- 
lastic manuals.  It  was  decided,  therefore,  not  to  specify  in 
any  way  whatever  the  legal  significance  of  the  articles  of  the 
Constitution  relating  to  fundamental  rights  and  duties.  It 
would  fall  to  legislators,  judges  and  public  officers  to  interpret 
in  the  future  each  of  these  articles  separately,  and  to  be  guided 
according  to  the  results  of  this  interpretation.  If,  however, 
one  may  attempt  such  an  interpretation,  it  would  appear  that 
these  articles,  from  the  point  of  view  of  their  legal  efiBcacy, 
may  be  divided  into  three  catagories. 

(1)  Those  having  the  force  of  law.  These  create  actually 
and  immediately  some  new  law,  and  consequently  abrogate 
contradictory  provisions  of  antecedent  laws.  Such,  for  exam- 
ple, is  Article  109,  par.  6:  "No  German  may  accept  a  title  or 
order  from  a  foreign  Government." 

(2)  Others  limit  themselves  to  indicating  to  legislators  of 
the  Reich  and  of  the  States  the  course  which  they  must  in 
the  future  follow  and  prescribe  the  laws  they  must  enact. 
But  these  provisions  do  not  in  themselves  constitute  laws,  and, 
therefore,  cannot  abrogate  ipso  facto,  contradictory  provisions 
in  antecedent  laws.  Such  is  the  principle  in  Article  145, 
according  to  which  "Instruction  and  school  supplies  .  .  .  are 
free."  This  cannot  have  for  its  effect  the  immediate  doing 
away  with  payments  by  pupils  in  the  schools  for  supplies  fur- 


LEGAL  AND  POLITICAL  ASPECTS         201 

nished  them.  There  is  no  doubt  that  the  principle  of  gratuity 
cannot  enter  into  operation  except  through  a  special  law  ex- 
pressly prescribed. 

(3)  Other  provisions  express  general  truths,  which  are  most 
often  ordinary  philosophico-legal  commonplaces,  whose  exact 
meaning  and  bearing  in  a  text  such  as  the  Constitution  is 
difficult  to  grasp.  For  example,  it  is  hard  to  see  the  special 
significance  which  a  phrase  can  have  in  a  constitutional  docu- 
ment such  as  the  one  which  declares  that  marriage  is  placed 
under  the  special  protection  of  the  Constitution. 

However  diverse  may  be  the  conceptions  that  prevailed  at 
the  drawing  up  of  the  fundamental  rights,  and  whatever  un- 
certainty they  may  present  from  the  legal  point  of  view,  it  is 
possible,  nevertheless,  when  the  whole  of  the  second  part  of 
the  Constitution  of  Weimar  is  surveyed,  to  discover  in  these 
articles  some  common  characteristics  and  to  unfold  the  fun- 
damental ideas  that  have  inspired  the  majority  of  the  Con- 
stituent Assembly. 

It  is  evident  that  the  Assembly  conceived  the  fundamental 
rights  and  duties  in  a  manner  quite  different  from  that  of  the 
authors  of  preceding  Declarations  of  Rights  in  America, 
France,  or  even  in  Germany.  These  declarations  were  in- 
spired by  purely  individualistic  doctrine.  Man  is  by  nature 
free  and  independent;  he  holds  rights  that  are  limited  only  by 
such  other  rights  as  will  assure  to  other  men  the  enjoyment 
of  the  same  rights  as  his.  From  this  ensues  a  two-fold  con- 
sequence. First,  he  may  act  in  his  own  right  provided  that 
he  confines  himself  within  the  limits  of  the  right  in  question. 
Within  these  rights  he  is  truly  sovereign,  and  the  state  may 
not  encroach  on  them  to  impose  any  obligation  whatsoever. 
On  the  other  hand,  conversely,  the  state  docs  not  owe  any 
positive  service  or  pledge  to  the  profit  of  the  individual.  It 
must  abstain  from  all  interference  and  allow  him  free  indi- 


202  THE  GERMAN  CONSTITUTION 

vidual  activities.     The  State  owes  nothing  to  the  individual, 
who  in  turn  can  claim  nothing  from  it. 

This  doctrine  does  not  appear  in  the  new  German  Constitu- 
tion. The  Assembly  at  Weimar  has  substituted  for  it  a  con- 
ception by  virtue  of  which  man,  while  still,  it  is  true,  enjoy- 
ing a  certain  number  of  individual  prerogatives,  nevertheless 
must  place  them  at  the  service  of  the  collectivity.  In  what- 
ever concerns  liberty  properly  so-called,  property,  the  means 
of  production,  the  intellectual  development  of  man,  there  is 
found  everywhere  this  dominant  idea  of  the  social  function 
of  man.  Individual  liberties  are  no  longer  an  end  in  them- 
selves, nor  do  they  constitute  any  longer  an  independent  good. 
They  are  limited  and  conditioned  by  the  duty  of  the  indi- 
vidual to  co-operate  in  the  well-being  and  the  development  of 
the  collectivity.  They  have  no  value  and  are  not  protected 
except  in  the  measure  that  they  serve  for  the  accomplishment 
of  this  social  duty. 

2. — FUNDAMENTAL  RIGHTS  AND  DUTIES  OF  THE  INDIVIDUAL, 

The  Constitution  commences  by  enumerating  as  completely 
as  possible  individual  liberties  such  as  traditionally  figure 
in  most  declarations  of  rights.  Not  a  single  one  of  them  is 
left  out,  and  there  have  been  even  others  added:  equality, 
at  least  in  theory,  of  men  and  women;  protection  of  minor- 
ities; the  right  to  secrecy  in  telegraphic  and  telephonic  com- 
munication; liberty  of  opinion  extended  to  manifestations  of 
thought  by  means  of  motion  picture  films,  etc. 

One  may,  therefore,  apply  for  the  Germans  the  classic 
table  of  individual  liberties. 

First,  the  civil  equality.  The  suppression  of  privileges  of 
birth  or  of  class.  Titles  of  nobility  have  no  other  value  except 
as  a  part  of  a  name.  Titles  ma)'-  not  be  conferred  except  as 
they  designate  an  employment  or  a  function.  The  state  may 
no  longer  confer  orders  or  honorary  insignia  and  no  German 
may  accept  a  title  or  order  from  a  foreign  government. 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    203 

Then  come  the  individual  liberties  properly  so-called;  not 
only  the  right  to  come  and  go,  but  also  the  right  to  settle  in 
any  part  of  the  Reich,  to  emigrate  to  any  non-German  coun- 
try, to  be  protected  from  surrender  to  a  foreign  government 
for  prosecution  or  punishment;  guarantee  against  arbitrary 
arrests,  imprisonment,  and  other  penalties;  the  inviolability 
of  domicile  and  correspondence. 

In  a  third  place,  the  right  to  freedom  of  activity;  liberty 
to  engage  in  work,  commerce  and  industry;  liberty  of  creed 
and  conscience  ;  liberty  to  practise  religion  ;  liberty  of  instruc- 
tion; liberty  to  express  publicly  one's  thoughts  by  words, 
speeches,  printed  matter,  figures,  films  and  in  any  other  man- 
ner; liberty  of  assembly  and  association. 

In  the  fourth  place  the  liberty  of  individual  property.  This 
cannot  be  expropriated  except  for  the  common  good,  by 
virtue  of  a  legislative  provision  and  must  be  indemnified. 

The  enumeration  of  rights  and  duties  is  complete,  but  the 
idea  that  prevailed  at  its  adoption  is  different  from  that 
which  inspired  the  authors  of  preceding  Declarations  of 
Rights.  In  recognizing  the  liberties  of  the  individual,  the 
object  is  no  longer  to  protect  him  against  the  State,  but  to 
permit  him  to  co-operate  in  the  most  effective  fashion  in  the 
well-being  of  all. 

This  leads  naturally  to  the  imposition  on  the  liberty  of 
the  individual  of  a  certain  number  of  restrictions  hitherto  un- 
known. On  the  other  hand,  it  imposes  on  the  state  a  certain 
number  of  new  duties,  the  discharge  of  which  affords,  as  corol- 
laries, new  rights  to  the  individual. 

I. — iNDIVmUAL  RIGHTS  ARE  SUBJECT  TO  CERTAIN  NEW  RE- 
STRICTIONS   IN     THE    INTERESTS    OF    THE     COLLECTIVITY. — The 

individual  is  no  longer  merely  entitled  to  work.  It  is  his  duty. 
This  obligation  is  provided  for  by  Article  1,  par.  1,  of  the 
socialization  law  of  March  23,  1919,  which  has  become 
Article  163,  par.  1,  of  the  Constitution.  "Every  German  has, 
without  prejudice  to  his  personal  liberty,  the  moral  duty  so  to 


204  THE  GERMAN  CONSTITUTION 

use  his  intellectual  and  physical  powers  as  is  demanded  by 
the  welfare  of  the  community."  ^ 

It  is  true,  therefore,  that  personal  liberty  is  conditioned. 
The  draft  of  the  socialization  law  submitted  by  the  Cabinet 
did  not  contain  these  conditions,  and  the  Social  Democratic 
Minister,  Wissel,  in  open  session  of  the  National  Assembly, 
expressly  rejected  the  principle  of  the  liberty  of  the  individual. 
In  the  same  manner  the  Social  Democrats  and  the  Inde- 
pendents proposed  amendments  according  to  which  the  sole 
liberty  guaranteed  to  the  individual  was  that  of  choosing 
his  profession;  this  one  right  availed  of,  the  liberty  of  the 
individual  was  thereupon  used  up,  and  he  must  thereafter 
conduct  himself  exclusively  according  to  the  needs  of  com- 
munity. But  a  coalition  of  all  the  representatives  of  the 
bourgeois  parties  organizing  against  the  conceptions  behind 
the  Socialist  proposal,  the  provision  concerning  the  principle 
of  the  liberty  of  employment  was  introduced  into  the  law  of 
March  23,  1919,  and  into  the  Constitution. 

Saving  his  personal  liberty,  therefore,  every  German  also 
has  work  as  his  moral  duty;  that  is  to  say,  he  should  con- 
tribute all  the  economic  work  that  he  is  capable  of  according 
to  his  physical  and  intellectual  abilities.  In  addition,  this 
work  must  correspond  to  a  definite  condition  ;  it  must  be  such 
as  is  "demanded  by  the  welfare  of  the  community." 

In  Germany  many  see  in  this  provision  a  central  point  of 
the  law  and  hold  that  it  constitutes  as  a  real  transition  from 
the  old  world  to  the  new.  Formerly  every  German  could, 
under  the  protection  of  the  law,  so  dispose  of  his  work  that  it 
served  only  his  selfish  ends.  Without  regard  to  the  interests 
of  his  fellow  citizens  or  those  of  the  community,  he  could,  pro- 

*It  should  be  observed  that  this  provision  has  been  decreed  by  a  law; 
consequently  there  can  be  no  question  in  regard  to  it  whether  it  is  a 
provision  having  the  force  of  law  or  only  a  moral  maxim.  It  is  a 
legislative  provision.  The  fact  that  it  was  later  inserted  into  the  Con- 
stitution has  only  the  effect  of  preventing  its  abrogation  or  its  modi- 
fication other  than  by  constitutional  amendment. 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    205 

vided  that  he  observed  the  outer  forms  of  the  law,  so  to  speak, 
"walk  over  dead  bodies"  without  violating  a  single  legal  pro- 
vision. In  a  general  way  and  aside  from  insignificant  excep- 
tions, there  reigned  in  the  century  of  economic  liberalism  an 
unlimited  egoism  of  the  individual,  protected  by  the  adage 
qui  jure  suo  utitur,  nemine  lœdit.  The  socialization  law  radi- 
cally changed  this  state  of  affairs.  Hereafter  every  German 
is  obliged,  for  the  well-being  of  the  whole  German  people,  to 
furnish  all  the  productive  labor  of  which  he  is  capable,  and 
must  abstain  from  all  action  liable  to  hinder  this  well-being. 
It  is  only  within  these  limits  that  economic  egoism  may  here- 
after move. 

However,  this  novel  duty  to  work  is  as  yet  only  a  "moral 
duty."  These  words,  which  were  not  found  in  the  original 
draft  by  the  Cabinet,  were  added  by  the  Constitutional  Com- 
mittee; and  the  Independents  tried,  but  in  vain,  to  have  them 
omitted.  It  does  not  seem,  however,  that  the  majority  which 
.has  adopted  them,  has  ever  given  them  a  clear,  unequivocal 
meaning.  One  thing  is  clear,  however;  the  law  wished  to  dis- 
tinguish between  a  moral  duty  and  a  positive  legal  obligation, 
whose  execution  can  be  expressly  compelled.  But  it  is  per- 
haps possible  to  interpret  this  provision  in  such  a  way  that 
the  violation  of  the  duty  to  work  may  involve  legal  con- 
sequences, which  can  have  as  a  result  the  right  on  the  part  of 
the  state  to  exercise  indirect  constraint  on  the  individual  who 
does  not  carry  out  his  duty.  The  German  who  does  not  work, 
or  who  lets  himself  be  dominated  in  his  work  by  purely  selfish 
ends,  has  no  longer  the  right  to  demand  protection  of  the  laws; 
he  cannot  demand  that  his  work  shall  be  protected  by  the 
Reich.  Perhaps  one  may  even  go  so  far  as  to  appeal  to  the 
article  of  the  Civil  Code,  according  to  which  all  legal  pro- 
cedure that  violates  good  morals  is  null;^  and  hold  it  applic- 
able to  acts  and  contracts  that  do  not  correspond  to  the  moral 

'This  principle  of  civil  law  has  also  become  now  a  provision  of  con- 
stitutional law  (Article  152). 


206  THE  GERMAN  CONSTITUTION 

duty  imposed  by  the  socialization  law  and  by  the  Constitution. 
In  the  same  way  perhaps  also  Article  826  of  the  Civil  Code 
may  be  applied,  according  to  which  any  one  who  in  a  manner 
contrary  to  good  morals  deliberately  causes  damage  to  others 
is  obliged  to  repair  this  damage;  and  it  may  be  argued  that 
an  act  or  contract  inspired  by  a  selfish  end  falls  imder  the 
provision  of  this  law  and  brings  about  in  such  a  case  an 
obligation  to  compensate  the  community. 

Being  obliged  to  work,  is  the  individual  at  least  master  of 
the  product  of  his  toil?  May  he  dispose  of  his  property  as 
he  wishes?  No  longer.  As  with  his  work,  the  individual 
must  place  his  property  at  the  service  of  the  community.  And 
the  same  idea  that  has  resulted  in  the  restriction  of  his  liberty 
to  work  now  leads  to  a  corresponding  restriction  of  his  right 
over  property;  "Property  rights  imply  property  duties." 
(Article  153.)     These  restrictions  are  several  kinds. 

First,  that  of  expropriation.  It  is  true  that  this  was  already 
admitted  in  individualist  doctrine.  But  this  doctrine  hemmed 
the  right  of  expropriation  on  the  part  of  the  state  within 
narrow  limits,  inasmuch  as  it  prescribed  strictly  the  cases 
in  which  the  state  could  use  this  right,  and  provided  always 
the  payment  of  a  just  and,  usually,  a  previously  ascertained 
indemnity.  These  two  guarantees  given  to  property  owners 
are  strikingly  diminished  in  the  new  German  constitutional 
law.  On  the  one  hand,  it  is  true  the  principle  is  retained 
that  expropriation  must  not  be  resorted  to  except  for  the  wel- 
fare of  the  community.  But  this  notion  of  general  welfare 
has  been  particularly  elastic.  Thus  in  Article  155  the  State 
is  permitted  to  expropriate  in  cases  of  housing  crises,  in  the 
interests  of  settlement  and  reclamation  of  land,  or  in  the  im- 
provement of  agriculture.  Thus  the  Socialization  Law  and 
after  it  the  Constitution  in  Article  156  permit  the  state  to 
transfer  to  public  ownership  private  business  enterprises 
adapted  for  socialization.  On  the  other  hand,  the  principle 
of  a  just  indemnity  seems  to  have  been  retained.    However, 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    207 

there  is  but  one  case  in  which  indemnity  is  imposed  and  guar- 
anteed by  the  Constitution;  it  is  that  where  the  Reich  expro- 
priates "the  property  of  the  States,  municipalities,  and  asso- 
ciations of  public  utility."  In  all  other  cases  the  restriction 
provided  in  Article  153  applies;  expropriation  takes  place  with 
indemnity  "in  so  far  as  is  not  otherwise  provided  by  national 
law." 

In  addition  to  expropriation,  the  Constitution  provides  other 
restrictions  on  the  right  of  property: 

Land  owners  are  under  the  obligation  to  cultivate  it  and 
utilize  it.  However,  there  is  no  provision  made  in  case  this 
duty  is  not  carried  out. 

The  right  of  inheritance  is  guaranteed,  but  the  State  has 
the  right  to  take  part  of  the  inheritance  according  to  provi- 
sions determined  by  the  laws  of  the  Reich,  in  particular  fis- 
cal laws. 

An  increase  in  the  value  of  land  arising  without  the  appli- 
cation of  labour  or  capital  to  the  property  accrues  to  the 
benefit  of  the  community  as  a  whole. 

Entailments  are  dissolved.  This  provision  is  an  obligatory 
prescription  imposed  on  the  legislatures  of  the  States,  which 
obliges  them  to  put  an  end  to  entailments,  for  this  matter  is 
given  over  by  the  Civil  Code  to  the  rights  of  States.  By  en- 
tailments is  understood  the  legal  institution  by  which  a  patri- 
mony, particularly  holdings  of  land,  because  of  the  limitation 
of  the  right  to  sell  and  the  establishment  of  a  certain  succession 
provided  by  a  testament,  creates  for  the  owning  family  in 
the  person  of  the  holder  of  the  entail  an  economic  position  of 
security  and  thereby  of  increased  advantage.  These  entails 
often  go  back  considerably  in  time,  but  they  are  very  fre- 
quent in  Germany,  to  such  an  extent  that  land  holdings  sub- 
ject to  this  legislation  comprise,  for  example,  in  Prussia  about 
seven  per  cent  of  all  the  landed  properties,  with  about  two 
and  a  half  million  hectares.  In  certain  sections  entailed 
property  represents  about  twenty-two  per  cent  of  the  whole 


208  THE  GERMAN  CONSTITUTION 

agricultural  service.  For  a  long  time  now  it  has  been  ques- 
tioned whether  this  institution,  which  tends  to  the  concentra- 
tion of  more  and  more  land  into  fewer  and  fewer  hands,  should 
not  be  abrogated.  It  is  argued  in  particular  against  the  en- 
tails that  the  community  cannot  allow  a  mere  decision  taken 
by  the  private  will  of  a  proprietor  to  be  perpetuated;  that 
entails  have  an  unfavourable  effect  on  the  distribution  of  land 
and  that  they  finally  tend  to  wipe  out  the  small  and  the 
average  property.  It  follows  of  itself  that  with  the  victory  of 
the  democratic  idea  and  in  an  epoch  in  which  the  tendency 
is  to  divide  each  piece  of  land  as  far  as  possible,  entailments 
must  be  dissolved.  In  leaving  to  the  States  the  legislation  on 
this  dissolution,  the  Constitution  has  only  applied  logically 
the  democratic  principles  on  which  it  rests.^ 
II. — In  turn  the  state  is  obliged  to  fulfil  a  certain 

NUMBER    OF    DUTIES    TO    THE    BENEFIT    OF    INDIVIDUALS. — The 

classic  individualist  doctrine  limits  the  rights  of  the  State  but 
does  not  impose  upon  it  any  positive  service,  no  obligation 
to  the  benefit  of  its  citizens.  The  State  must  abstain  from 
certain  interferences,  but  the  individual  may  claim  no  more 
than  that  of  it.  German  constitutional  law,  however,  adopts 
another  conception,  and  while  it  restrains  individual  rights 
for  the  benefit  of  a  community,  it  also  imposes  upon  the  latter 
obligations  to  the  profit  of  the  individual.  From  this  there 
arise  to  the  profit  of  the  latter  new  rights  corresponding  to  the 
restrictions  to  which  he  is  subject. 

The  individual  owes  the  duty  of  working,  but  the  State 
owes  him  the  chance  to  work,  must  protect  his  work  and  ac- 
cording to  circumstances  must  furnish  him  with  the  neces- 
sities of  life.  From  this  is  derived  for  the  individual  the  right 
to  work,  the  right  to  the  protection  of  his  work  and  the  right 
of  subsistence. 

*  It  must  be  also  noted  that  up  to  now  the  States  have  not  as  yet 
complied  with  this  order  of  the  Constitution.  In  Prussia  in  particular 
it  does  not  seem  that  measures  have  yet  been  enacted  against  the 
"fideicommifl," 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    209 

The  State  must  furnish  work  to  the  individual.  This  obli- 
gation explains  itself  very  easily.  When  the  individual  is 
left  free  to  use  his  labour  as  he  pleases,  that  is  to  say,  when  he 
is  free  to  work  exclusively  in  the  interests  of  purely  selfish 
ends,  he  must  also  be  left  the  right  to  look  for  such  work  and 
to  dispose  of  his  labour  where  and  how  he  pleases.  The  com- 
munity disassociates  itself  from  a  work  in  which  it  is  not 
directly  a  beneficiary  or  from  which  it  may  even  suffer.  But 
if  it  demands  of  the  individual  that  he  devote  himself  only  to 
such  labour  as  will  benefit  the  whole  of  the  nation,  and  if  it 
forbids  him,  therefore,  a  certain  number  of  occupations  which 
benefit  only  the  individual,  it  is  indispensable  that  it  take 
measures  to  guarantee  him  sufiicient  remunerative  work. 
Article  163,  par.  2,  provides  therefore:  "Every  German  shall 
have  the  opportunity  to  earn  his  living  by  economic  labour." 

Of  what  exactly  consists  this  duty  on  the  part  of  the  State? 
It  is  certainly  not  a  legal  obligation  that  gives  the  individual 
the  right  to  demand  before  a  tribunal  the  execution  of  this 
promise.  It  is  a  promise  that  the  Constitution  makes  and 
which  it  sufficiently  fulfils  if  the  Reich  institutes  a  general 
system  to  make  known  all  the  available  possibilities  for  work. 
An  individual  may  ask  only  what  kind  of  work  is  available 
and  what  opportunity  there  is  of  securing  it.  The  proposal 
of  the  Socialization  Law  provided  that  every  German  shall 
receive  work  corresponding  to  his  powers.  The  final  text  of 
this  law,  like  that  of  the  text  of  the  Constitution,  limits  itself 
to  prescribing  that  every  German  must  be  given  the  oppor- 
tunity to  earn  his  living  by  economic  labour,  that  is  to  say, 
by  labour  that  produces  goods,  utilizing  to  the  utmost  the 
available  conditions  of  work.  In  addition,  the  compensation 
to  the  individual  must  be  sufiicient  for  a  livelihood. 

The  State  in  addition  protects  labour.  The  Socialization  Law 
declares  that  the  power  of  labour  is  the  most  precious  economic 
good  and  it  imposes  on  the  Reich  the  legal  obligation  to  pro- 


210  THE  GERMAN  CONSTITUTION 

tect  it.  The  Constitution  of  Weimar  applies  in  Article  157 
the  terms  of  the  law  of  March  23,  with  the  exception  of  the 
words,  "the  most  precious  economic  good."  But  the  Consti- 
tution also  extends  and  organizes  in  outline  the  duty  of  the 
State  in  this  respect.  It  amplifies  this  duty  in  expressly 
specifying  in  its  Article  158  that  intellectual  labour  also  is 
under  the  special  protection  of  the  Reich.  As  to  the  measures 
for  the  protection  of  labour,  some  of  them  come  under  domestic 
law,  others  under  international  law.  Within  the  Reich  itself 
the  Constitution  prescribes  the  creation  of  uniform  labour 
legislation.  In  addition  it  guarantees  to  every  individual  and 
to  every  vocation  the  liberty  of  organization  for  the  defence  and 
the  development  of  the  conditions  of  labour  and  of  economic 
life,  and  it  accords  to  each  employé  and  laborer  the  free  time 
necessary  for  the  exercise  of  the  civil  duties  and  free  public 
functions  that  may  be  given  to  him.  Finally,  it  promises 
a  complete  system  of  social  insurance  to  be  established  for 
the  maintenance  of  health  and  standards  in  labour.  In  inter- 
national relation,  the  Constitution  imposes  on  the  Reich  the 
obligation  to  protect  abroad  the  products  of  German  science, 
art  and  technique,  and  to  strive  for  the  establishment  of  an 
international  regulation  of  the  legal  status  of  workers. 

Finally  the  State  must  provide  for  the  needs  of  individuals 
out  of  work;  and  this  obligation  logically  results  from  the  prin- 
ciple that  inspires  all  of  this  part  of  the  Constitution.  Since 
the  Reich  imposes  on  every  German  the  obligation  to  work 
only  for  the  good  of  the  community,  it  must  see  to  it — apart 
from  any  humanitarian  or  financial  considerations — ^that 
every  German's  capacity  for  labour  shall  be  maintained  as  long 
and  at  as  high  a  standard  as  possible.  That  is  why,  not  con- 
tent with  merely  protecting  this  capacity  of  labour,  the  Social- 
ization Law  and  the  Constitution  provide  that  every  German 
must  receive  what  is  necessary  for  his  livelihood,  to  the  ex- 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    211 

tent  that  a  possibility  of  adequate  employment  cannot  be 
assured  to  him  (Article  163), 

The  draft  of  the  Socialization  Law  provided  as  a  condition 
to  this  duty  on  the  part  of  the  State  that  the  individual  shall 
not  have  been  able  to  find  employment.  The  final  text  of  the 
law  which  the  Constitution  also  uses  provides  only  that  such 
opportunity  for  employment  shall  not  have  been  offered. 

The  burden  of  the  proof  is  thus  reversed  from  the  general 
rule  and  an  attitude  purely  passive  on  the  part  of  the  indi- 
vidual in  this  respect  is  sufficient  to  entitle  him  to  public 
succour.  On  the  other  hand,  it  is  not  sufficient  for  the  dis- 
charge of  all  such  obligations  on  the  part  of  the  State  if 
it  merely  offers  the  individual  any  employment  whatsoever. 
For  it  does  not  serve  the  community  in  any  way,  as  the  most 
interested  party,  when  an  individual  is  employed  in  work 
for  which  he  is  not  fitted.  The  community,  therefore,  must 
procure  work  corresponding  to  the  mental  and  physical  powers 
of  the  individual  and  to  his  capacity.  If  the  State  does  not 
succeed  in  doing  so,  it  is  obliged  to  furnish  him  a  livelihood. 

To  put  into  operation  the  principles  thus  enunciated  by 
the  Constitution,  different  laws  are  necessary — a  law  on  the 
offer  of  employment,  a  law  protecting  labour,  a  law  on  the 
help  to  be  given  to  the  unemployed.  Such  laws  have  not  yet 
been  enacted.  However,  a  certain  number  of  ordinances  have 
been  passed  that  constitute  on  the  part  of  the  Reich  the 
beginning  of  the  execution  of  the  new  obligations  imposed 
upon  it. 

First,  measures  have  been  taken  to  procure  employment 
for  individuals.  To  this  end,  aside  from  the  ordinance  of 
December  9,  1918,  which  imposes  on  municipalities  the  obli- 
gation of  organizing  employment  bureaus,  public  and  impar- 
tial, there  is  also  an  ordinance  of  May  5,  1920,^  creating  for 
the  Reich  a  bureau  devoted  to  finding  employment.     This 

^  Reichsgesetzblatt,  1920,  p.  876. 


212  THE  GERMAN  CONSTITUTION 

agency  has  for  its  principal  function  a  survey  of  the  labour 
market  and  the  editing  of  periodical  bulletins  on  the  situation 
in  this  market  for  the  purpose  of  establishing  an  equilibrium 
between  supply  and  demand  in  the  different  regions  and  in  the 
different  vocations. 

Measures  have  been  taken  also  to  protect  labour.  The  first 
step  toward  the  creation  of  uniform  labour  legislation  was  made 
by  the  provisional  ordinance  of  January  24,  1919,  which, 
supplementing  the  divisions  of  the  Civil  Code,  regulates  labour 
in  agricultural  and  forestry  exploitations.^  Social  insurance 
legislation,  such  as  is  found  codified  in  the  law  of  the  Empire 
of  July,  1911,  i.  e.,  as  sickness,  accident,  disability  and  death 
insurance,  has  been  supplemented  by  different  provisions, 
particularly  by  a  law  of  December  29,  1919,  relative  to  the 
protection  of  pregnant  women. 

Finally,  regarding  the  obligation  to  provide  livelihood  for 
unemployed,  different  ordinances  have  been  issued  which  were 
codified  by  an  ordinance  of  January  26,  1920.^  According  to 
these  ordinances,  the  duty  of  organizing  a  service  for  the 
supplying  of  the  needs  of  unemployed — a  service  which  must 
not  take  on  the  character  of  charity — falls  upon  the  munici- 
palities, which  are  assisted  financially  by  the  Reich  to  the 
extent  of  six-twelfths  of  the  total  expense  and  by  the  State 
with  four-twelfths  of  this  expense.  The  municipalities  must 
refuse  this  help  to  those  who  do  not  accept  the  work  offered 
them,  even  if  this  work  does  not  fit  the  vocation  of  the 
one  refusing  and  even  if  it  must  be  done  away  from  home, 
provided  always  that  this  work  be  adapted  to  the  physical 

^  The  question  of  the  length  of  the  working  day  has  not  been  touched 
by  the  Constitution.  Up  to  now  it  has  been  regulated  exclusively  by 
special  decrees  based  on  the  eight-hour  day.  The  decrees  of  November 
23,  1918,  and  of  December  17,  1918,  introduced  the  eight-hour  day  for 
workers  in  industries  with  the  exception  of  industries  which  must  not 
be  mterruptcd.  The  decree  of  November  23,  1918,  prescribed  the  length 
of  the  working  day  in  bakeries;  that  of  March  18,  1919,  did  the  same 
for  salaried  employés.  A  general  law  that  provides  for  an  eight-hour 
day  and  regulating  its  application  is  in  preparation. 

'  Reichsgesetzblatt,  1920,  p.  98. 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    213 

capacity  of  the  unemployed.  The  only  ground  on  which  one 
may  refuse  such  work  is  that  the  pay  is  not  sufficient,  given 
local  conditions,  to  support  the  individual  and,  if  married,  his 
family.^ 

In  the  same  way  that  restrictions  on  the  liberty  of  labour 
have  created  for  the  State  a  number  of  duties  relating  to  the 
employment  of  individuals,  so  the  restrictions  on  the  rights 
of  private  property  have,  as  a  consequence,  engendered  a 
number  of  obligations  on  the  part  of  the  State  to  assure  to 
every  one,  if  not  a  minimum  of  property,  at  least  a  minimum 
of  well-being. 

The  Constitution  guarantees  individual  property,  but  on 
the  condition  that  the  distribution  and  the  utilization  of  land 
do  not  present  abuses.  The  aim  of  this  is  to,  "to  insure  to 
every  German  a  healthful  dwelling  and  .  .  .  homestead  cor- 
responding to  his  needs"  (Article  155).  To  this  end  coloniza- 
tion must  be  favoured,  the  development  of  agriculture  and  the 
utilization  of  the  soil  must  be  promoted;  a  survey  must  be 
made  of  all  the  mineral  resources  and  all  economically  useful 
forces  of  nature. 

In  accordance  with  their  conception  of  the  duties  of  the 
State,  the  Constituent  Assembly  outlined  a  vast  programme  of 
agrarian  and  social  policy.  In  addition  they  themselves 
passed  several  laws  which  form  the  commencement  of  the 
execution  of  this  programme  and  which  are  intended  to  guide 
future  legislation. 

In  order  to  insure  every  German  a  habitation  and  a  home- 
stead, the  Reich  first  promulgated  a  decree,  July  31,  1919, 
"On  small  gardens  and  little  farms,"  according  to  which  tracts 
of  land,  which  cannot  be  used  profitably,  must  be  rented  out 
at  rates  fixed  by  administrative  authorities  after  expert  ap- 
praisal, or  may  be  leased,  and  later  sub-leased,  for  gardens,  by 
the  authorities. 

*  As  yet  there  has  not  been  organized  inâurance  against  non-employ- 
ment. 


214  THE  GERMAN  CONSTITUTION 

Later  the  law  of  April  11,  1919,  was  passed  "on  coloniza- 
tion." This  law  obliges  the  State  to  create  interior  colonies 
and  small  undertakings.  To  this  end  territory  belonging  to 
the  State  must  be  put  on  sale  to  "collective  colonization  enter- 
prises"; these  enterprises  may  be  subsidized  by  means  of 
expropriations  of  swamps  and  uncultivated  tracts.  They 
have  the  right  of  pre-emption  in  the  sale  of  tracts  of  land  of 
less  than  twenty-five  hectares.  On  the  other  hand,  to  de- 
velop colonization  tracts,  there  must  be  organized  "associa- 
tions for  the  furnishing  of  tracts"  in  all  districts  where  more 
than  ten  per  cent  of  the  cultivatable  soil  is  in  the  hands  of 
big  holders,  that  is,  of  more  than  one  hundred  hectares  per 
holder.  These  associations,  formed  by  a  union  of  big  land- 
holders, must,  on  the  demand  of  collective  colonization  enter- 
prises, put  at  the  disposal  of  the  latter  at  reasonable  prices 
tracts  of  land  taken  from  the  big  properties.  Their  obliga- 
tions in  this  respect  cease  when  they  have  thus  given  over 
to  colonization  a  third  of  the  utilizable  surface  of  the  large 
properties,  or  when  the  total  area  of  these  properties  is  not 
more  than  ten  per  cent  of  the  area  of  the  district.  The  right 
of  pre-emption  by  the  colonization  enterprises  in  respect  to 
large  properties  is  exercised  through  the  associations  for  the 
furnishing  of  tracts.  In  urgent  cases  these  associations  may 
proceed  by  means  of  expropriation. 

The  Reich,  finally,  in  order  to  assure  a  habitation  to  indi- 
viduals, must  take  a  whole  series  of  measures  in  the  case  of 
housing  crises.  Already  before  the  Revolution  a  decree  of 
September  23,  1918,  gave  to  municipalities  the  right  to  make 
regulations  for  the  prevention  of  the  demolition  of  buildings 
or  their  use  for  other  purposes  than  dwelling.  The  munici- 
palities had  the  right  to  draw  up  leases,  even  against  the  wish 
of  the  owners,  through  the  intermediacy  of  "offices  for  the  dis- 
tribution of  lodgings,"  and  to  appropriate  all  unusued  buildings 
for  the  purpose  of  converting  them  to  dwellings,     A  later 


RIGHTS  AND  DUTIES  OF  INDIVIDUAL    215 

decree  of  November  7,  1918,  provided  that  associations  of 
municipalities  and  groups  of  municipalities  could  be  created  to 
fight  against  housing  crises.  After  the  Revolution,  a  new 
decree  of  January  15,  1919,  contained  more  important  pro- 
visions for  meeting  the  most  urgent  needs  created  by  such 
crises.  The  State  Cabinets  were  obliged  to  appoint  "housing 
commissioners,"  charged  with  the  care  of  homeless  families 
and  the  creation  of  small  and  average  appropriate  lodgings. 
To  this  end,  they  received  considerable  powers.  They  could 
expropriate  by  a  summary  procedure  unoccupied  buildings 
they  deemed  necessary,  or  have  such  buildings  erected  on 
grounds  which  they  had  authority  to  lease  for  terms  as  long  as 
thirty  years.  They  could  dispense  with  the  requirements  of 
legislative  provisions,  expropriate  tile  and  other  building  ma- 
terials necessary  for  the  rapid  construction  of  buildings;  they 
could  seize  building  lumber  and  forbid  unnecessary  construc- 
tion. The  service  of  these  Housing  Commissioners  was  under 
the  Minister  of  Labour  for  the  Reich. 

Finally,  in  order  to  protect  tenants,  the  ordinances  of  Sep- 
tember 23,  1918,  and  of  June  22,  1919,  sanctioned  and  sup- 
plemented by  the  law  of  May  11,  1920,  limit  considerably  the 
rights  of  owners  to  dispose  of  habitable  quarters  and  en- 
trust to  the  "offices  for  distribution  of  lodgings,"  extensive 
rights  relative  to  the  renting  out  of  apartments  and  the  terms 
of  lodgings.  In  particular,  according  to  the  law  of  1920,  if 
grave  inconveniences  result  from  the  lack  of  lodgings,  the 
states  may,  with  the  consent  of  the  Minister  of  the  Reich, 
authorize  or  constrain  the  municipalities  to  take,  or  them- 
selves take,  measures  that  constitute  encroachments  on  the 
liberty  of  settlement  and  the  inviolability  of  domicile,  on  con- 
dition that  these  measures  be  expressly  necessary  to  meet  a 
housing  crisis  or  to  combat  it.  This  law  specifies,  in  addi- 
tion, that  decisions  taken  in  the  fight  against  the  shortage  of 
houses  may  be  executed  by  administrative  constraint. 


216  THE  GERMAN  CONSTITUTION 

3. — FUNDAMENTAL    RIGHTS    AND    DUTIES    OF    COMMUNITIES. 

The  Constituent  Assembly  did  not  limit  itself  to  the  estab- 
lishment of  a  list  of  rights  and  duties  of  the  individual.  The 
social  conceptions  by  which  it  was  dominated  led  it  to  pro- 
claim, after  the  rights  and  duties  of  the  individuals,  the  rights 
and  duties  of  certain  groups  and  communities  that  seemed  to 
it  to  play  a  particularly  important  rôle  in  society — the 
family,  associations,  municipalities,  civil  service. 

I. — The  family. — For  the  first  time  the  family,  the  natural 
foundation  of  all  ordered  national  life,  finds  itself  mentioned 
in  the  Declaration  of  Rights  of  a  modern  state.  The  Con- 
stitution of  Weimar  formularies  the  general  principles  which 
should  dominate  legislation  relating  to  marriage,  to  the  edu- 
cation and  the  protection  of  children  and  to  the  duties  of 
education  devolved  upon  parents. 

Article  119  places  marriage  under  the  special  protection  of 
the  Constitution.  Marriage,  which  forms  the  basis  of  family 
life  and  on  which  depends  the  increase  of  the  population  of 
the  nation,  is  based  on  the  equal  rights  of  both  sexes.  Mar- 
riage and  the  family  are  recognized  as  the  basis  on  which 
social  life  reposes  and  as  the  primary  source  from  which 
develop  German  customs  and  culture.  In  consequence  Article 
119  enunciates  a  legislative  course  of  considerable  social  and 
political  importance.  It  prescribes  the  care  of  the  purity, 
the  health  and  the  social  advancement  of  the  family  as  a 
duty  of  the  state  and  of  the  municipalities.  Families  with 
numerous  children  have  a  claim  to  equalizing  assistance. 
Motherhood  has  the  right  to  the  protection  and  care  of  the 
State. 

Proposals  were  made,  during  the  discussion  of  the  draft 
of  the  Constitution,  to  lighten  the  lot  of  illegitimate  children. 
They  were  aimed  to  assimilate,  from  the  point  of  view  of 
family  rights,  illegitimate  and  legitimate  children.  The  ma- 
jority of  the  National  Assembly  decided,  because  of  the  diffi- 


RIGHTS  AND  DUTIES  OF  COMMUNITIES    217 

culties  of  regulating  in  a  constitutional  text  questions  of  pri- 
vate rights,  to  leave  this  matter  to  legislation  and  to  later 
development.  The  Assembly  limited  itself  to  forming  guiding 
principles  only.  Legislation  must  assure  to  illegitimate  chil- 
dren the  same  conditions  for  physical,  moral  and  social  devel- 
opment that  legitimate  children  have.  But  convinced  of  the 
need  of  legislative  reform  on  this  matter,  the  Assembly  passed 
a  resolution  that  there  should  be  taken,  as  soon  as  possible 
and  by  legislative  means,  a  new  ordering  of  the  legal  and 
social  status  of  illegitimate  children. 

Concerning  education.  Article  120  declares  only  that  par- 
ents have  the  right  and  the  duty  to  educate  their  children; 
"The  physical,  mental,  and  moral  education  of  their  offspring 
is  the  highest  duty  and  natural  right  of  parents."  But  the 
State  must  not  leave  it  entirely  to  parents  and  intervenes  as 
an  organ  of  surveillance.  The  political  community  watches 
over  the  execution  by  the  parents  of  these  duties  imposed 
upon  them. 

In  addition  the  State  assumes  as  an  obligation  in  a  general 
way  the  protection  of  youth;  the  care  of  children  and  youth 
comes  under  the  legislative  authority  of  the  Reich.  As  a 
guide  for  the  accomplishment  of  this  obligation.  Article  122 
specifies  that  youth  shall  be  protected  against  exploitation  as 
well  as  against  physical  and  mental  neglect. 

II. — Association. — The  right  of  assembly  and  association 
was  already  regulated  by  the  law  of  April  19,  1908;  in  addi- 
tion to  this  the  Civil  Code  contained  some  provisions  on  the 
acquisition  of  civic  rights.  The  Constitution  contents  itself 
with  taking  as  its  own  the  principles  that  inspired  these  laws, 
but  it  makes  certain  changes  in  the  existing  laws. 

As  to  the  liberty  of  assemblage,  Article  123  holds  to  rules 
previously  adopted,  "All  Germans  have  the  right  of  meeting 
peaceably  and  unarmed  without  notice  or  special  permission." 
The  obligation  that  public  meetings  be  reported  in  advance 


218  THE  GERMAN  CONSTITUTION 

to  the  authorities,  which  formerly  existed,  is  abolished.  Fur- 
thermore, while  the  law  of  1908  demanded  that  public  meet- 
ings in  the  open  air  and  manifestations  on  public  ways  and 
squares  receive  in  advance  authorization  by  the  police — 
authorization  which  must  be  applied  for  at  least  twenty-four 
hours  in  advance — the  Constitution,  on  the  other  hand,  de- 
clares that  in  theory  these  meetings  are  free  and  do  not  need 
to  be  authorized.  It  adds,  however,  that  in  the  interest  of 
security  and  public  order,  liberty  of  assembly  may  be  limited 
by  law,  this  limitation  consisting  furthermore  not  in  the  need 
of  authorization,  but  only  in  the  obligation  to  give  the  police 
notice  in  advance. 

As  to  liberty  of  association  the  Constitution  still  holds  to 
the  principle  of  the  regulations  of  1908.  "All  Germans  have 
the  right  to  form  associations  or  societies  for  purposes  not 
contrary  to  the  criminal  law.  This  right  cannot  be  limited 
by  preventive  measures."  (Article  124.)  Associations  may 
acquire  a  legal  status  according  to  the  regulations  provided 
by  the  Civil  Code.  Hitherto  these  regulations  gave  adminis- 
trative authorities  the  right  to  oppose  the  acquisition  of  legal 
status  by  associations  of  a  political,  social  or  religious  charac- 
ter. This  opposition  resulted  in  the  associations  in  question 
being  kept  from  the  register  of  associations,  and  thereby  pre- 
vented them  from  acquiring  legal  standing.  This  restriction 
is  abolished  by  the  Constitution  as  contrary  to  the  modern 
principle  according  to  which  liberty  of  association  must  be 
kept  intact.  To  this  effect  it  is  expressly  provided,  "Every 
association  has  the  right  of  incorporation  in  accordance  with 
the  civil  law.  No  association  may  be  denied  this  right  on  the 
ground  that  it  pursues  a  political,  social-political,  or  religious 
object." 

III. — Municipalities. — ^Article  127  provides,  "Municipal- 
ities and  unions  of  municipalities  have  the  right  of  self-gov- 


RIGHTS  AND  DUTIES  OF  COMMUNITIES    219 

ernment.   .   .   ."    Thus   the  principle   of   decentralization  is 
found  introduced  in  the  list  of  fundamental  rights. 

The  Constitution  declares  that  this  autonomy  must  be  exer- 
cised "within  the  limits  of  the  laws." 

IV. — Civil  servants. — Finally,  the  Constitution  reaches  the 
question  of  civil  servants,  to  which  it  devotes  no  less  than 
six  articles. 

Before  the  Constitution  went  into  effect,  the  status  of  civil 
servants  of  the  Empire  was  regulated  by  the  law  on  civil 
servants,  March  31,  1873,  as  amended  by  the  law  of  May  18, 
1907.  The  new  Constitution  left  this  law  intact,  but  it  super- 
imposed a  series  of  general  rules,  some  of  which  were  bor- 
rowed from  the  preceding  laws  applying  to  the  civil  servants 
of  the  Empire,  and  which  are  destined  hereafter  to  hold  good 
for  all  German  civil  servants,  as  well  as  those  of  the  states 
and  of  public  corporations. 

The  principles  that  serve  as  a  point  of  departure  are:  that 
civil  servants  are  in  the  service  not  at  all  of  the  party  in 
power,  but  of  the  community;  that,  therefore,  civil  servants 
who  remain  faithful  to  the  community  all  their  lives  have  the 
right  to  be  kept  in  office  for  life  and  to  have  guaranteed  them 
a  financially  adequate  situation;  finally  that  outside  of  his 
office  every  civil  servant  is  neither  more  nor  less  than  any 
other  citizen.  These  principles  the  Constitution  applies  in 
the  provisions  relative  to  the  free  access  of  all  citizens  to 
public  functions,  to  the  political  liberty  of  civil  servants  and 
finally  to  their  financial  responsibility. 

(1)  "All  citizens  without  distinction  are  eligible  for  public 
office  in  accordance  with  the  laws  and  according  to  their 
ability  and  services."  (Article  128.)  In  the  future,  citizen- 
ship in  a  particular  state  may  no  longer  be  demanded  by  the 
laws  of  the  States  as  a  condition  for  public  employment; 
for  the  Constitution  expressly  provides  that  citizens  must  be 
admitted  to  public  employment  "without  distinction."  In  addi- 


220  THE  GERMAN  CONSTITUTION 

tion,  Article  110,  par.  2,  formally  declares,  "Every  German 
has  the  same  rights  and  duties  in  each  State  of  the  Common- 
wealth as  the  citizens  of  that  State."  On  the  other  hand, 
Article  16  provides  that  as  a  rule  oflBcers  directly  charged 
with  the  administration  of  services  that  depend  directly  on 
the  Reich,  and  who  are  assigned  to  a  State,  shall  be  citizens 
of  that  State.  From  this  it  must  be  concluded  that  the  civil 
servants  of  a  State  may  as  a  rule  be  recruited  from  among  the 
citizens  of  that  State  without  violating  the  spirit  of  the  Con- 
stitution. 

Already  in  preceding  laws  one  finds  no  legal  obstacle  to  the 
admission  of  women  to  civil  service.  The  Constitution  de- 
clares, meanwhile:  "All  discriminations  against  women  in  the 
civil  service  are  abolished."  By  this — a  logical  consequence 
of  the  provision  of  Article  109,  by  which  men  and  women  have 
in  principle  the  same  civil  rights  and  duties — all  obstacles  to 
the  admission  of  women  to  the  service  of  the  State  on  the  same 
conditions  as  men  are  abolished. 

(2)  Civil  servants  are  in  principle  appointed  for  life. 
However,  exceptions  are  provided  for,  either  in  case  future 
legislation  on  civil  servants  contains  contrary'  provisions,  or  if, 
up  to  then,  the  law  on  civil  servants  of  the  Empire  and  the 
laws  of  the  states  have  provided  a  different  rule.  A  pro- 
posal by  the  Independents,  according  to  which  civil  servants 
would  have  to  be  chosen  by  election  and  therewith  lose  all 
guarantees  the  Constitution  and  the  laws  accord  them,  was 
rejected  by  a  great  majority.  The  rights  acquired  by  civil 
servants  must  be  inviolable.  Claims  in  money  matters  must 
be  heard  by  tribunals.  Civil  servants  may  not  be  temporarily 
deprived  of  their  function,  retired  for  a  time  or  permanently, 
or  be  given  new  work  of  a  lower  nature  except  under  conditions 
and  according  to  forms  provided  by  law  and  not  by  simple 
arbitrary  administrative  measures. 

Against  any  disciplinary  measure,  civil  servants  may  enter 
protests  and  commence  procedure  for  damages.    Furthermore, 


RIGHTS  AND  DUTIES  OF  COMMUNITIES    221 

the  system  of  secret  reports  on  persons  employed  is  abolished. 
Every  civil  servant  has  the  right  to  consult  his  record,  and 
no  disparaging  entry  may  be  introduced  in  it  without  the 
opportunity  being  given  to  the  employé  to  explain  himself 
on  this  matter, 

(3)  Civil  servants  are  in  the  service  of  the  State,  of  the 
community  and  not  at  all  the  servants  of  a  party  or  the  party 
in  power.  In  consequence  of  this  they  retain  the  liberty  of 
political  conviction  and  of  association.  A  later  law  of  the 
Reich  was  provided  for  organizations  in  which  civil  servants 
are  represented  and  which  are  supposed  to  co-operate  in  the 
regulation  of  all  questions  concerning  them.  The  same  idea 
that  led  to  the  recognition  of  the  right  of  workers  and  clerks 
to  co-operate  in  the  form  of  Factor^'  Workers  Councils  applies 
to  civil  servants  and  gives  them  the  right  to  co-operate  in  all 
matters  concerning  them. 

(4)  Finally  the  Constitution  prescribes  in  a  uniform  man- 
ner for  the  whole  Reich,  for  the  public  servants  of  the  states 
as  well  as  those  employed  by  public  corporations,  the  limits 
of  the  financial  responsibility  of  public  servants. 

The  responsibility  of  civil  servants  is  regulated  by  Section 
838  of  the  Civil  Code.  "Every  employé,  who  through  pre- 
meditation or  negligence,  violates  the  duty  imposed  upon  him 
by  his  function,  to  the  damage  of  a  third  party,  must  recom- 
pense this  party  for  the  damage  thus  caused."  As  to  the  man- 
ner in  which  this  compensation  is  to  be  awarded,  the  Civil 
Code  leaves  it  to  the  legislatures  of  the  individual  states  to 
determine.  Making  use  of  this  authorization,  most  of  the 
States  individually  have  decided  that  the  State  shall  be 
responsible  instead  of  the  civil  servants^  and  that  the  public 
treasury  assume  the  indemnity  to  the  limit  for  which  the  civil 
servant  is  responsible,  the  treasury  retaining,  however,  the 
right  to  proceed  against  the  civil  servant.  Prussia  adopted 
this  system  in  the  law  of  April  1.  1909,  and  the  Empire  fol- 
lowed  it,   for  the   employés   of  tlie   Empire,   in   the   law   of 


222  THE  GERMAN  CONSTITUTION 

May  22,  1910.  However,  there  are  still  member  states, 
Saxony  for  example,  in  which  this  solution  has  not  yet  been 
adopted  and  where  the  civil  servants  are  still  directly  respon- 
sible to  any  individual  who  suffers  damage  through  them. 

The  Constitution  confirms  in  Article  131  a  state  of  affairs 
that  exists  in  most  of  the  States  and  in  the  Reich,  and  declares 
that  if  a  civil  officer  in  the  exercise  of  the  authority  conferred 
on  him  by  the  law  fails  to  perform  his  official  duty  toward 
any  third  person,  the  responsibility  is  assumed  by  the  state 
or  public  corporation  in  whose  service  the  officer  is.  The 
right  of  redress  against  the  officer  is  reserved. 

4. — RELIGION    AND    THE    CHURCHES. 

Declarations  of  Rights  generally  contain,  justly  so,  prin- 
ciples relative  to  religious  liberty  and  the  free  exercise  of 
creeds.  But  the  Constitution  of  Weimar  could  not  limit  itself 
on  this  point  to  traditional  general  maxims.  The  question  of 
the  relations  of  church  and  state  forms  an  essential  article  of 
the  programme  of  the  Centre,  and  also  of  the  programme  of  the 
Social  Democrats.  Their  solutions  would  seem  to  be  self- 
contradictory.  The  Centre  wanted  to  guarantee  to  the  Church 
a  privileged  and  preponderant  situation  within  the  State.  The 
progranmae  of  Erfurt,  on  the  other  hand,  declared  religion  to  be 
a  purely  private  matter,  and  refused  all  subsidies  levied  on 
public  resources  in  behalf  of  ecclesiastical  or  religious  needs. 
But  these  two  parties  entered  at  that  moment  into  a  coalition 
which,  together  with  the  Democrats,  governed  the  Reich.  As 
neither  of  these  two  opposed  conceptions  was  able  to  prevail, 
the  conflict  of  the  two  theories  was  finally  settled  by  a  com- 
promise— which  before  consummation  required  laborious 
negotiations. 

The  Constitution  first  proclaims  the  principle  of  liberty  of 
belief  and  conscience  and  the  free  exercise  of  religion.  These 
liberties  are  expressly  placed  by  the  Constitution  under  the 


RELIGION  AND  THE  CHURCHES  223 

protection  of  the  State.  They  are  guaranteed  against  every 
invasion  no  matter  from  what  side  it  comes.  But  the  general 
laws  of  the  State  remain  intact  and  religious  liberty  finds  itself 
limited  by  the  general  regulations  for  the  maintenance  of  order 
and  public  security.  Every  abuse  in  the  exercise  of  religious 
liberty  is  punished  by  ordinary  law.  Civil  rights  and  duties 
must  not  be  restrained  or  conditioned  by  the  exercise  of 
religious  liberty.  The  enjoyment  of  civil  and  civic  rights  as 
well  as  the  admission  to  public  employ  are  independent  of  the 
religion  professed.  No  one  is  obliged  to  divulge  his  or  her 
religious  convictions  before  any  authority  whatsoever,  and 
the  right  of  an  authority  to  inquire  into  the  sect  to  which  one 
belongs  may  not  be  exercised  except  as  one's  rights  and  duties 
depend  upon  this,  as,  for  example,  in  the  matter  of  church 
tithes  or  in  the  matter  of  guardianship  or  instruction;  or 
where  it  is  necessary  for  the  gathering  of  statistics  ordered  by 
law.  No  one  may  be  forced  to  attend  any  Church  ceremony 
or  to  take  part  in  any  religious  exercise.  No  one  may  be 
forced  to  make  use  of  any  religious  oath  as  was  formerly 
prescribed  in  civil  and  penal  procedure.  It  is  sufficient,  in 
taking  an  oath,  that  the  one  swearing  shall  declare  without 
a  religious  formula,  "I  swear!" 

On  the  other  hand,  the  Constitution  contains  several  pro- 
visions regarding  the  exercise  of  religion.  Sundays  and  legal 
holidays  remain  protected  by  law  as  days  of  rest  and  spiritual 
edification. 

These  principles  being  admitted,  there  still  remained  the 
difficult  problem  of  the  relations  of  State  and  Church.  The 
following  solution  was  adopted:  There  is  neither  complete 
separation  nor  any  close  union  of  the  Churches  and  the  State. 
The  Churches  are  emancipated  from  the  State,  but  they  enjoy 
certain  privileges. 

The  Churches  are  free.  "There  is  no  State  Church."  The 
union  that  formerly  existed  between  the  Church  and  the  State, 
in  Prussia,  for  example,  and  in  the  majority  of  the  German 


224  THE  GERMAN  CONSTITUTION 

States  between  them  and  the  evangelical  church,  has  disap- 
peared, and  the  principle  according  to  which  religious  affairs 
depend  upon  the  state  is  abolished. 

This  freedom  of  the  Churches  is  manifested  first,  in  that  the 
creation  of  religious  denominations  and  sects  is  free,  and  that 
the  assembly  of  religious  denominations  in  associations  within 
the  Reich  is  subject  to  no  limitation  whatever.  It  is  also  re- 
vealed in  the  complete  independence  of  the  Churches  in  regard 
to  the  State.  Each  religious  denomination  administers  and 
conducts  its  affairs  freely,  provided  that  it  observes  the  laws 
that  apply  to  all.  It  conducts  its  work  without  the  co-opera- 
tion of  the  State  or  of  the  municipality.  The  new  system  real- 
izes thus  the  emancipation  of  ecclesiastical  administration 
from  secular  control.  The  State  may  neither  decree  regulations 
affecting  faith,  nor  appoint  any  one  to  ecclesiastical  service 
nor  demand  that  its  assent  be  required  to  the  nominations 
made  by  ecclesiastical  authority. 

However,  the  Constitution  does  not  push  the  principle  of 
the  separation  of  Church  and  State  to  such  a  point  as  to  allow 
religious  denominations  no  more  than  the  merely  private 
rights  accorded  by  law  to  natural  persons.  Recognizing  the 
social  force  and  the  importance  in  public  life  exercised  by  the 
Churches,  the  Constitution  accords  them  privileges  similar  to 
those  given  to  public  corporations.  Religious  denominations 
existing  in  Germany  at  the  time  of  the  adoption  of  the  Con- 
stitution remain  recognized  as  public  corporate  bodies.  As 
for  other  similar  organizations,  the  same  rights  are  accorded 
them  on  the  motion  of  the  state  government  if,  by  their 
constitution  and  the  sufiScient  number  of  their  adherents,  they 
offer  guarantees  of  permanence.  While  recognizing  that  in 
theory  the  smaller  religious  groups,  chapels,  and  sects  may  be 
invested  with  rights  similar  to  those  of  the  principal  churches, 
the  object  of  the  above  limitation  is  to  prevent  ephemeral 
organizations  from  acquiring  the  standing  of  public  corporate 
bodies. 


RELIGION  AND  THE  CHURCHES  225 

The  Constitution  does  not  expressly  state  of  what  the 
rights  of  public  corporations  consist,  for  these  rights  result 
from  provisions  made  in  the  legislation  of  the  various  states. 
In  a  general  way,  however,  public  corporations,  in  addition 
to  the  legal  standing  that  private  law  gives  them,  are  under 
the  special  protection  of  the  State.  Their  organizations  are 
indirectly  public  agencies,  and  they  have  the  right  to  levy 
taxes.  This  right,  practically  the  most  important  of  those 
accorded  public  corporations,  is  expressly  emphasized  and 
guaranteed  in  the  Constitution. 

Religious  denominations  that  are  public  corporate  bodies 
have  the  right  to  levy  taxes  on  the  bases  of  the  lists  estab- 
lished for  the  collection  of  civil  taxes.  The  right  to  levy  the 
taxes  granted  to  public  religious  denominations  is  limited,  as 
a  rule,  to  their  members.  They  may,  however,  in  exceptional 
cases  levy  on  certain  other  taxables,  particularly  corporations 
and  joint  stock  companies,  etc.,  to  the  same  extent  as  on  their 
co-religionists,  if  the  laws  of  the  particular  State  authorize 
this. 

If  several  religious  bodies  combine  into  one  association,  the 
latter,  without  being  required  to  secure  any  special  authoriza- 
tion, becomes  a  public  corporation.  This  provision  is  impor- 
tant and  has  been  voted  out  of  consideration  for  the  evangelical 
churches  of  the  States  which  up  to  now  were  territorially  sepa- 
rated, and  which  are  seeking  to  unite  in  a  German  ecclesi- 
astical organization,  such  as  had  to  be  formed  after  the  disap- 
pearance of  the  régime  in  which  reigning  princes  ruled  the 
churches. 

The  financial  situation  of  religious  bodies  is  regulated  by 
Article  138.  The  property  and  other  rights  of  religious  bodies 
and  associations  for  the  maintenance  of  their  cultural,  edu- 
cational, and  charitable  institutions,  their  foundations  and 
other  possessions,  arc  guaranteed.  As  a  consequence  of  the 
separation  of  Church  and  State,  the  Constitution  provides 
that  the  obligations  hitherto  imposed  on  the  State  to  partiel- 


226  THE  GERMAN  CONSTITUTION 

pate  financially  in  the  expenses  of  the  Churches  no  longer 
exists.  But  on  this  point  the  'Constitution  compromises. 
Payments  due  from  the  State  to  the  Churches  because  of  some 
law  or  of  legal  title  to  such,  must  be  commuted  by  state  legis- 
lation, on  bases  fixed  by  the  Reich,  The  States,  however, 
cannot  proceed  to  do  this  before  a  law  of  the  Reich  has  fixed 
these  bases.  Till  then,  these  payments  continue.  (Articles 
138  and  179.) 

The  liquidation  must  include  not  only  the  payments  owed 
because  of  a  law  or  treaty,  but  also  those  due  by  virtue  of 
some  special  legal  title,  particularly  those  resting  on  customary 
law  and  tradition. 

The  question  whether,  in  the  new  legislation  relative  to  the 
Churches,  there  subsists  still  any  special  right  of  supervision 
by  the  States^  cannot  be  answered  uniformally.  Properly 
speaking  there  is  no  right  of  supervision  by  the  States.  But 
the  latter  may  exercise  over  the  Churches  the  same  control  as 
over  public  corporations  for  the  purpose  of  maintaining  order 
and  public  security. 

5. — EDUCATION  AND  SCHOOLS. 

After  having  regulated  the  question  of  the  relations  between 
Church  and  State,  the  Constituent  Assembly  took  up  the  prob- 
lem of  education.  It  approached  it  in  the  same  spirit  that 
inspired  the  provisions  it  adopted  relative  to  fundamental 
rights  and  duties.  Here,  too,  it  exerted  itself  to  give  its  work 
a  marked  social  character;  and  to  a  very  large  measure  it 
succeeded. 

However,  the  Articles  concerning  the  schools  were  the  sub- 
ject of  long  deliberations  and  lively  discussions  in  committee 
and  in  the  full  session  of  the  Constitutional  Assembly.  In  the 
debates  on  schools,  on  the  relations  of  Church  and  State,  and 
on  the  relations  of  schools  and  churches,  two  conflicting  con- 
ceptions were  manifested.   Whereas  the  Centre  and  the  parties 


EDUCATION  AND  SCHOOLS  227 

of  the  Right  declared  in  principle  for  religious  schools,  the 
Social  Democrats  championed  the  idea  of  secular  schools,  and 
long  negotiations  were  required  to  find  a  compromise  between 
these  two  apparently  irreconcilable  doctrines. 

The  Constitution,  in  its  final  text,  contains  provisions  rela- 
tive to  public  instruction,  and  to  private  instruction  as  well  as 
provisions  applicable  to  both  of  these. 

I. — Public  instruction  must  form  an  "organized  whole." 
That  is  to  say,  it  must  not  consist  of  a  collection  of  schools 
of  different  kinds  without  any  logical  bond  between  them  ;  but 
on  the  contrary  it  must  be  systematically  organized,  in  such 
a  manner  that  each  kind  of  school  will  be  part  of  a  harmoni- 
ous whole,  constructed  on  a  rational  plan  and  answering  a 
definite  object.  This  instruction  must  be  systematized  by 
co-operation  of  the  Reich,  the  States  and  the  municipalities. 

But  what  principles  should  guide  this  organization  and  what 
should  be  its  aims?  It  is  here  that  the  social  doctrine  of  the 
Constituent  Assembly  reappears.  Public  instruction  whose 
detailed  organization  is  left  to  the  regulation  by  ordinary  laws 
to  be  enacted  must  present  certain  characteristics,  all  arising 
from  the  same  idea — guaranteeing  to  every  individual  a  maxi- 
mum of  development  to  the  end  that  he  may  co-operate  in  the 
most  effective  fashion  in  the  well-being  of  the  community. 

(1)  At  the  base  of  the  educational  edifice  there  is  the 
common  or  elementary  school  (Grundschule),  which  gives  all 
children  an  equal  education,  from  the  point  of  view  of  length 
of  time  and  content.  This  is  the  principle  of  the  "uniform" 
school.  This  does  not  mean,  however,  that  everywhere  and 
in  all  the  states  public  schools  must  be  organized  after  an  in- 
variable pattern.  They  are  uniform  in  the  sense  that  they 
are  one  in  the  conception  underlying  their  establishment,  in 
that  they  are  inspired  in  every  respect  and  exclusively  by  the 
same  democratic  principles,  that  no  difference  in  instruction 
is  made  ^nd  that  the  economic  and  social  position  and  the 


228  THE  GERMAN  CONSTITUTION 

religious  beliefs  of  parents  are  deliberately  disregarded  in 
according  to  children  the  right  to  an  education. 

(2)  Above  the  common  schools  are  the  secondary  and 
higher  schools.  The  Constitution  does  not  say  how  these  are 
to  be  organized.  It  indicates  only  the  idea  that  is  to  serve 
as  a  guide  to  legislators  when  they  construct  the  educational 
edifice.  The  State  is  not  to  yield  to  the  will  and  the  desires 
of  individuals,  but  is  to  be  guided  before  all  by  the  aptitudes 
and  the  interests  of  the  children. 

(3)  All  children  are  naturally  not  compelled  to  go  through 
the  whole  educational  curriculum,  but  there  is  an  obligatory 
minimum  of  instruction.  Educational  obligations  are  notably 
extended  in  the  Constitution  as  compared  to  their  former 
limits.  "Attendance  at  school  is  obligatory.  This  obliga- 
tion is  discharged  by  attendance  at  the  elementary  schools 
for  at  least  eight  school  years  and  at  the  continuation  schools 
until  the  completion  of  the  eighteenth  year."  Formerly  the 
obligation  to  attend  school  was  only  for  seven  years  for  the 
public  schools.  Supplementary  instruction,  therefore,  thus  be- 
comes an  essential  part  of  public  education  in  all  the  Reich. 

(4)  Instruction  is  free,  at  least  in  the  elementary  and  sup- 
plementary schools.  This  is  a  necessary  result  of  com- 
pulsory education.  The  secondary  and  higher  schools  are  in 
theory  not  free,  but  "to  facilitate  the  attendance  of  those  in 
poor  circumstances  at  the  secondary  and  higher  schools,  public 
assistance  shall  be  provided  by  the  Commonwealth,  States, 
and  municipalities,  particularly,  assistance  to  the  parents  of 
children  regarded  as  qualified  for  training  in  the  secondary 
and  higher  schools,  until  the  completion  of  the  training." 

(5)  Instruction  in  public  schools,  with  some  exceptions,  re- 
mains religious.  The  most  serious  disputes  arose  over  this 
point.  Undoubtedly  obvious  progress  has  been  realized  by 
withdrawing  the  public  school  from  the  local  supervision  of 
members  of  the  clergy;  and  by  making  hereafter  public  in- 
struction as  a  whole  subject  to  the  inclusive  control  of  the 


EDUCATION  AND  SCHOOLS  229 

State.  Municipalities  may  in  addition  be  summoned  to  par- 
ticipate in  this  supervision.  This  will  permit  future  educa- 
tional laws  of  the  Reich  and  administrative  laws  of  the  States 
to  give  the  municipality  a  share  in  supervising  the  instruction 
— not  only  over  the  work  of  the  schools  but  also  over  the  spirit 
in  which  it  is  carried  on.  Even  parents  will  be  allowed  the 
right  to  co-operate  in  it  and  teachers  will  be  given  a  voice 
in  the  management.  The  supervision  of  the  schools  on  the  part 
of  the  Reich  will  be  hereafter  solely  by  civil  servants,  who  will 
have  this  as  their  principal  function  and  who  will  be  especially 
appointed  for  this  purpose. 

But  the  principal  question  was  whether  the  public  school, 
even  when  supervised  by  the  State,  should  be  neutral  or 
whether  it  should  remain  religious  in  teaching. 

Three  systems  were  submitted.  One  was  the  system  of  the 
secular  school,  where  no  religious  instruction  is  given.  An- 
other was  the  mixed  school,  where  children  of  all  religious 
faiths  are  admitted  without  distinction  and  where  the  par- 
ents indicate  whether  they  wish  their  children  to  receive 
religious  instruction,  and  if  so,  what.  The  third  was  the 
denominational  system,  properly  so-called,  in  which  the  public 
school  is  specialized  by  religious  denominations,  each  de- 
nomination having  its  own  school  where  the  child  receives 
the  religious  instruction  of  its  denomination. 

The  discussions  on  this  question  went  through  three  suc- 
cessive phases.  At  first  there  was  some  agreement  on  a  plan 
according  to  which  schools  would  be  mixed,  in  theory,  but  the 
denominational  school,  properly  so-called,  would  not  be  com- 
pletely excluded;  for  the  law  could  admit,  on  the  proposition 
of  parents,  the  creation  of  schools  in  which  only  the  children 
of  a  single  denomination  would  be  received. 

This  compromise  not  completely  satisfying  the  Centre, 
which  used  its  influence  to  effect  a  change,  a  new  plan  was 
therefore  accepted.  This  introduced  the  denominational 
school,  properly  so-called,  into  the  Constitution.    According  to 


230  THE  GERMAN  CONSTITUTION 

this  plan,  the  wish  of  parents  would  decide  whether  a  school 
should  be  secular,  mixed  or  denominational,  the  free  choice 
by  the  parents  being  limited  only  by  the  requirements  of  well- 
ordered  scholarship.  The  parties  of  the  Left  vigorously  op- 
posed this.  The  most  serious  objection  they  raised  was  that 
it  would  have  as  a  consequence  the  necessity  on  the  part  of 
some  states,  such  as  Baden  and  Hesse,  which  had  already  in- 
troduced mixed  schools  legally,  to  renounce  them  again.  A 
new  compromise  was  thereupon  arrived  at,  which  under  the 
new  form  became  the  final  text.  Denominational  schools  and 
lay  schools  would  constitute  exceptions  and  could  not  be 
established  except  when  demanded  by  heads  of  families  and 
conditioned  by  the  requirements  of  well-ordered  scholarship. 
As  for  the  rest  the  educational  questions  must  be  regulated, 
the  principles  by  an  educational  law  for  the  Reich,  the  details 
by  the  legislation  of  the  States. 

Thus  in  principle  the  public  school  is  mixed.  The  public 
school  is  attended  by  all  children  no  matter  to  what  religion 
they  belong,  and  religious  instruction  forms  part  of  the  regu- 
lar school  curriculum.  (Article  149.)  The  imparting  of 
religious  instruction  in  the  school  must  take  place  within  the 
general  framework  of  educational  legislation.  In  other  words, 
it  is  not  the  church  but  the  State  which  gives  instruction. 
It  is  the  State  that  must  take  into  its  hands  the  organization 
of  religious  instruction.  It  is  the  State  that  decides  what 
place  religious  instruction  shall  hold  in  its  curriculum.  It 
goes  without  saying,  however,  that,  as  to  the  content  of  re- 
ligious instruction,  this  must  be  in  agreement  with  the  prin- 
ciples of  the  religious  society  concerned.  No  teacher,  accord- 
ing to  Article  149,  par.  2,  can  be  compelled  to  give  religious 
instruction  or  to  participate  in  religious  exercises.  In  the 
same  way  no  pupils  are  obliged  to  take  religious  instruction  or 
to  participate  in  ecclesiastical  ceremonies  and  festivities. 
They  may  only  be  compelled  to  do  so  if  the  persons  who  have 


EDUCATION  AND  SCHOOLS  231 

the  right  to  decide  on  their  religious  education  express  the 
desire  that  they  do  so. 

But  public  secular  schools  and  public  denominational 
schools,  properly  so-called,  also  may  continue,  and  their 
existence  is  constitutionally  guaranteed.  These  schools,  by 
the  same  title  as  the  mixed  schools,  are  elementary  schools,  on 
which  may  be  based  secondary  and  higher  education.  But 
these  cannot  be  established  in  municipalities  except  under  cer- 
tain specified  conditions.  There  must  first  be  a  formal  de- 
mand on  the  part  of  a  suflBcient  number  of  heads  of  families. 
Then  the  organization  of  the  school  asked  for  must  conform 
to  high  educational  standards.  From  all  this  it  may  be 
concluded  that  the  system  of  the  uniform  school  and  the 
transition  from  the  public  school  to  secondary  and  higher 
schools  must  not  be  interfered  with.  In  addition,  the  arrange- 
ment of  instruction  based  on  the  diverse  vocational  needs, 
must  not  be  made  impossible.  Finally,  public  instruction 
must  not  be  handicapped  by  the  unnecessary  establishment  of 
useless  and  inefficient  schools.  The  wishes  of  heads  of  families, 
as  far  as  possible  and  in  accordance  with  the  above  conditions, 
must  be  taken  into  consideration  and  their  proposals  accepted. 
Questions  of  detail,  such  as,  what  is  understood  by  "head  of  a 
family";  how  many  such  are  sufficient  within  a  municipality 
to  be  able  to  demand  a  sectarian  or  a  secular  school;  how 
many  schools  there  shall  be  and  of  what  kind,  must  be  settled 
by  educational  laws  of  the  Reich  and  by  laws  of  the  States 
which  must  follow  those  of  the  Reich. 

II. — Private  instruction  is  permitted.  (Article  142.)  How- 
ever, this  liberty  is  subject  to  important  restrictions  (Article 
147)  in  the  case  of  private  schools  considered  as  substitutes 
for  public  schools. 

In  general,  establishments  of  private  instruction,  no  matter 
of  what  grade,  can  be  created  only  by  the  authorization  of  the 
State.    This  authorization  is  subject  to  the  following  condi- 


232  THE  GERMAN  CONSTITUTION 

tions:  the  programme  and  the  equipment  of  private  schools 
must  not  fall  below  the  programme  and  equipment  of  public 
schools.  The  scientific  training  of  teachers  of  private  schools 
must  be  of  as  high  a  standard  as  that  of  public  school 
teachers.  The  economic  and  legal  position  of  private  school 
teachers  must  be  guaranteed.  Finally,  private  schools  cannot 
become  the  schools  of  class  or  caste. 

Elementary  private  schools  are  subjected  by  the  Constitu- 
tion to  several  special  conditions.  Their  establishment  is 
authorized  when  in  any  municipality  there  does  not  exist  for 
a  minority  of  heads  of  families,  whose  needs  must  be  con- 
sidered, a  public  school  of  their  denomination,  or  one  that 
conforms  to  their  ethical  system.  Such  a  school  may  also  be 
established  if  educational  authorities  recognize  in  the  demands 
of  such  a  group  a  special  pedagogical  interest.  The  Consti- 
tutional provisions  relating  to  programmes  and  free  instruction 
apply  also  to  private  elementary  schools. 

Private  preparatory  schools  are  abolished. 

Finally,  for  private  schools  that  are  not  substitutes  for 
public  schools,  such  as  commercial  and  professional  schools, 
the  laws  formerly  in  existence  still  operate. 

III. — The  Constitution  contains  a  number  of  provisions  for 
instruction,  both  public  and  private.  It  provides  that  voca- 
tional instruction  and  moral  and  civic  education  shall  be  part 
of  the  programme  of  all  schools.  By  means  of  vocational  in- 
struction children  must  be  made  to  understand  the  great  im- 
portance of  work,  for  the  individual  as  well  as  for  society 
as  a  whole.  Civic  instruction  must  acquaint  children  with  the 
rights  and  duties  of  citizens,  with  the  organization  of  the  Ger- 
man State,  and  with  the  public  life  of  Germany.  To  this  end, 
every  scholar  on  completion  of  the  course  in  compulsory  edu- 
cation shall  receive  a  copy  of  the  Constitution. 

Such  are  the  provisions  relative  to  instruction  in  the  schools. 


EDUCATION  AND  SCHOOLS  233 

They  constitute,  as  compared  to  the  former  state  of  affairs, 
a  considerable  change.  But  these  provisions  cannot  be  ef- 
fectively put  into  operation  except  by  a  series  of  laws  on  the 
part  of  the  Reich  as  well  as  of  the  States,  a  process  which 
threatens  to  be  a  long  one  in  point  of  time. 

However,  in  April,  1920,  the  first  law  on  this  matter  was 
passed  by  the  National  Assembly.  It  was  the  law  on  the 
elementary  school.  According  to  this  law,  primary  schools 
must  be  so  organized  that  the  first  four  years  may  at  the 
same  time  serve  as  a  preparation  for  secondary  and  higher 
education.  Every  child  who  has  successfully  graduated  from 
the  highest  class  of  the  elementary  school  must  be  sufficiently 
prepared  to  enter  immediately  a  secondary  or  a  higher  school. 
Public  preparatory  schools  and  public  preparatory  classes  are 
abolished.  As  for  private  preparatory  schools,  their  suppres- 
sion will  take  place  only  after  a  sufficiently  long  reprieve  ;  their 
complete  abolition  need  not  take  place  until  the  commence- 
ment of  the  school  year  1929-1930;  since  economic  difficulties 
prevent  the  earlier  abolition  of  these  schools,  and  means  must 
be  taken  to  provide  for  the  teachers  who  will  be  deprived  thus 
of  their  occupations.  Private  instruction  is  not  allowed  ex- 
cept in  particular  cases  and  can  only  in  special  circumstances 
be  substituted  for  the  elementary  school.  The  law  -does  not 
touch  instruction  and  training  in  auxilary  classes;  nor  does 
it  concern  itself  with  the  instruction  of  children  physically  or 
mentally  diseased. 

In  addition  a  certain  number  of  interesting  innovations  have 
been  enacted  into  legislation.  These  have  as  their  purpose 
the  participation  by  parents  and  pupils  in  the  administra- 
tion of  schools.  On  the  one  hand,  in  the  secondary  schools 
there  are  organized  Students'  Councils  (Schulgemeinden). 
These  Councils  are  formed  by  pupils  of  the  three  upper 
classes,  who  meet  periodically  in  assembly  to  discuss  ques- 
tions of  instruction — educational  matters,  quarterly  reports, 
discipline,  duties,  etc.    Teachers  attend  these  meetings  with- 


234  THE  GERMAN  CONSTITUTION 

out  the  right  to  vote.  Up  to  now  these  assemblies  have  had 
only  the  right  to  propose  reforms  without  power  as  yet  to 
make  them  operative.  On  the  other  hand,  parents  elect  for 
each  school  a  Parents'  Council,  one  member  for  every  fifty 
pupils.^  This  Council  concerns  itself  mostly  with  classes,  exam- 
ination and  discipline.  If  a  pupil  has  committed  a  fault  involv- 
ing the  possibility  of  expulsion  from  the  schools,  it  is  before 
this  Council  that  this  question  is  taken.  Teachers  are  some- 
times admitted  to  these  deliberations  but  have  not  the  right 
to  vote. 

*  The  political  parties  interested  themselves  in  these  elections,  the 
platform  being  "for  or  against  religious  instruction."  The  number  of 
socialists  elected  was  less  than  that  of  bourgeois  parties. 


CHAPTER    VI 

THE     ECONOMIC     CONSTITUTION    AND 
SOCIALIZATION 

The  Constitution  imposes  on  each  German  the  duty  of  work. 
It  is  not  sufficient  in  modern  states,  especially  in  one  defeated 
in  war,  that  every  one  therein  merely  work,  unless  this  work  is 
directed  in  a  certain  spirit,  following  a  given  plan  and  toward 
a  determined  end.  The  fundamental  idea  that  inspired  the 
Constituent  Assembly  in  the  last  provisions  of  its  work  is 
as  follows:  The  whole  German  system  of  economy,  public  and 
private,  is  destroyed  or  demolished  by  the  war.  Germany 
cannot  dream  of  rising  from  its  ruins  unless  it  realizes  imme- 
diate and  radical  reforms.  It  must  completely  reconstruct  its 
former  economic  system.  The  whole  country  must  become 
an  immense  enterprise  directed  by  a  conscious  will  aimed  at 
a  definite  goal.  All  the  forces  of  the  country  solidly  organ- 
ized and  scientifically  utilized  must  be  so  managed  that  a 
maximum  of  production  will  be  assured. 

To  this  end,  two  series  of  reforms  are  contemplated.  They 
are  summed  up  in  these  words,  "councils"  and  "collective 
economy."  On  the  one  hand,  there  is  projected  an  Economic 
Constitution,  whose  organs  are  progressively  destined  to  be 
parallel  to  those  of  the  political  Constitution.  On  the  other 
hand,  the  effort  is  made  to  realize  in  the  organization  of  pro- 
duction and  distribution  an  economic  system  that  is  inter- 
mediate between  that  of  private  economy  on  the  one  hand, 
and  a  purely  socialist  regime  on  the  other. 

Nothing  systematic,  however,  has  as  yet  been  achieved. 
The  ground  is  new.    Surprised  by  the  Revolution,  the  theo- 

235 


236  THE  GERMAN  CONSTITUTION 

reticians  of  new  systems  have  not  yet  fixed  their  schemes  nor 
elaborated  complete  and  coherent  plans.  On  the  other  hand, 
the  majority  of  the  National  Assembly  is  formed  by  a  coali- 
tion of  parties  whose  economic  conceptions  differ  still  more 
than  do  their  political  conceptions.  This  lack  of  definitencss  and 
these  differences  endanger  all  effective  realization  of  a  solu- 
tion. But  the  necessity  of  reforms  has  made  itself  impera- 
tively felt  and  economic  difficulties  are  so  grave  and  menacing 
that  they  cannot  wait  indefinitely  for  solution.  Further,  there 
are  very  many  people  who  are  restive  and  who  do  not  hesitate 
to  resort  to  general  strikes  and  even  to  revolts,  when  govern- 
ments hesitate  too  long  in  effecting  a  reform  from  which 
they  hope  an  amelioration  of  their  lot.  That  is  why  one  will 
look  in  vain  for  a  plan  as  a  whole  or  a  logical  order  in  the 
provisions  we  are  about  to  study.  Most  of  them  were  adopted 
by  an  assembly  uncertain  of  the  work  it  should  do,  one  which 
went  about  its  tasks  most  hurriedly  and  obeyed  the  pressure 
of  external  forces  more  powerful  than  itself. 

SECTION  I 

THE  ECONOMIC  CONSTITUTION 

The  Economic  Constitution  rests  wholly  on  the  idea  of  the 
Councils.  It  is  rec-alled  ^  that  the  system  of  the  Councils, 
even  under  the  parity  principle  which  the  supporters  of  the 
Vocational  Parliament  wished  to  give  it,  was  left  out  of  the 
political  Constitution  but  is  included  in  the  Economic  Consti- 
tution, for  which  it  forms  the  framework. 

1. — THE  "anchorage"  OF  THE  COUNCILS  IN  THE  CONSTITUTION. 

Before  the  Revolution,  said  the  Socialists  and  Trade  Union- 
ists, there  was  in  Germany  neither  political  autonomy  nor 
economic  autonomy.  Just  as  in  their  political  life  the  people 
were  governed  by  a  coterie  of  junkers  and  bureaucrats,  so  in 

*See  Chapter  III. 


THE  "ANCHORAGE"  OF  COUNCILS        237 

their  economic  life  the  people  were  under  the  absolute  domina- 
tion of  the  entrepreneur.  This  autocracy  of  the  capitalists 
expressed  itself  legally  in  the  fact  that  the  conditions  of  work 
were  fixed  solely  by  the  employers.  The  omnipotence  of  the 
latter  was,  however,  modified  by  the  collective  bargains  con- 
cluded between  them  and  the  trade  unions.  While  it  is  true 
that  these  agreements  or  bargains  did  not  have  legal  guaran- 
tees, nevertheless  thanks  to  the  existence  of  workingmen's 
organizations  there  was  instituted  by  means  of  these  agree- 
ments a  contractual  and  coequal  workingmen's  right. 

The  Revolution  of  1918  introduced  in  Germany  political 
democracy.  The  republican  government  in  its  establishment 
has  even  taken  several  steps  along  the  road  of  economic 
democracy.  Reforms,  such  as  the  granting  of  complete  lib- 
erty of  organization,  the  abolition  of  ordinances  on  wages  and 
exceptional  laws  against  agricultural  labourers,  and  the  pro- 
tection of  workers  and  salaried  employés  against  arbitrary 
discharge,  certainly  mark  interesting  progress. 

But  the  Socialists,  followed  on  this  point  by  the  National 
Assembly,  held  that  these  reforms  were  only  preparatory  in 
character.  True  economic  democracy  can  not  content  itself 
with  the  mere  recognition  of  workers'  organizations  and  col- 
lective bargaining.  Economic  democracy  cannot  be  estab- 
lished and  therefore  economic  and  social  transformation  can- 
not be  effected,  unless  the  working  class  can  exercise  on  pro- 
duction the  influence  that  is  its  due.  There  must  be  provided 
an  organization  that  accords  the  workers  the  right  to  par- 
ticipate actively  in  the  determination  of  the  ends  and  of  the 
duties  of  the  vocation  and  the  enterprise;  which  makes  of 
the  workers  co-operators  with  the  capitalist.  There  must  be 
in  every  district,  in  the  states  and  in  the  Reich  an  economic 
representation  created,  in  which  workers  and  employés  will  be 
represented  by  the  side  of  their  employers,  and  in  which,  on  a 
footing  of  equality,  they  will  be  called  upon  to  co-operate  in 
the  regulation  of  all  economic  questions.     Such  is  the  thesis; 


238  THE  GERMAN  CONSTITUTION 

and  all  efforts  and  struggles  which  we  shall  observe,  centred 
about  the  problem  of  according  to  the  working  class  the  right 
of  codccision  (Mitbestimmungsrecht)  ;  and  about  the  prob- 
lem of  organizing  this  right.  But  so  far  nothing  has  been 
done  beyond  the  statement  of  some  indefinite  principles  and 
the  roughing  out  of  the  first  measures  of  their  realization. 

These  problems  were  not  new.  Already  before  the  war 
the  law  of  1891  provided  for  "Committees  of  Workers"  in  the 
factories,  who  could  be  consulted  on  the  provisions  of  factory 
regulations;  but  as  the  formation  of  these  committees  de- 
pended entirely  on  the  good-will  of  the  employers,  the  workers 
looked  with  little  sympathy  on  this  institution.  In  fact,  such 
committees  existed  in  several  thousand  factories,  but  their 
activity  was  limited  to  the  administration  of  the  income  from 
fines  and  the  institution  of  welfare  work. 

During  the  war  the  rôle  of  the  workers  increased  consider- 
ably in  importance.  The  laws  for  compulsory  patriotic  service 
which  took  away  from  them  the  liberty  of  work  owed  them 
compensation.  There  were  established  therefore  in  all  enter- 
prises where  there  were  more  than  fifty  employed,  "committees 
of  workers,"  which  were  elected  by  all  the  workers  and  had 
definite  functions.  There  were  in  addition  "joint  arbitration 
committees,"  where  conflicts  between  employers  and  employés 
were  settled.  "Committees  on  decisions"  also  existed,  charged 
with  ruling  on  other  questions  raised  by  the  law  for  patriotic 
service.  These  different  organisms  at  once  assumed  an  im- 
portant place  in  the  economic  life. 

On  the  advent  of  the  Revolution  the  unions  easily  obtained 
some  reforms  for  which  they  had  fought  for  a  long  time,  and 
which  constituted  their  immediate  claims. 

On  November  15,  the  unions  concluded  an  agreement  with 
the  employers'  associations,  which  has  served  as  the  basis 
of  an  important  development,  begun  on  that  date  and  known 
as  the  "labour  board"   ( Arbeitsgemeinschaft) .    The  Arbeits- 


THE  "ANCHORAGE"  OF  COUNCILS        239 

gemeinschaft  appeared  several  months  before  the  end  of  the 
war,  but  assumed  a  rôle  of  prime  importance  in  the  new 
organization  of  economic  Germany. 

The  Arbeitsgemeinschaft  has  been  defined  as  "the  com- 
bination of  big  associations  of  employers  and  of  workers  for 
the  regulation  of  reciprocal  relations  between  employers  and 
workers  and  for  the  solution  in  common  of  all  economic  and 
social  questions  touching  industry  and  labour,"  ^ 

The  essential  principle  of  the  Arbeitsgemeinschaft  is  that 
of  parity.  In  the  agreement  of  November  15,  the  labour  unions 
are  recognized  as  the  vocational  representatives  of  the  work- 
ers. The  most  complete  liberty  of  organization  is  accorded 
them.  The  agreement  specifies  as  its  practical  tasks  the 
feeding  of  veterans,  the  distribution  of  raw  material,  and  the 
regulation  in  common  of  "labour  disputes.  For  the  settlement 
of  pending  questions  there  was  organized  a  special  committee 
composed  one-half  of  employers  and  one-half  of  workers. 

Several  days  later,  December  4,  1918,  there  was  drawn  up 
the  "statutes  of  the  Arbeitsgemeinschaft  of  the  employers  and 
employés  of  Germany."  All  German  industries  were  divided 
into  a  certain  number  of  groups,  which  had  common  organs 
composed  half  of  employers  and  half  of  workers,  each  elected 
by  their  respective  organizations.  There  was  in  addition  a 
central  council,  which  was  the  Arbeitsgemeinschaft  of  all  the 
employers  and  organized  workers  of  all  German  industries. 
Its  members  were  elected  by  the  groups  from  their  mem- 
bership ;  and  these  in  turn  elected  a  Central  Committee,  which 
executed  the  decisions  of  the  Central  Council. 

All  these  organs — and  this  point  must  be  emphasized — were 
composed  half  of  employers  and  half  of  workers.  The 
parity  principle  is  at  the  basis  of  the  whole  organization  of  the 
Arbeitsgemeinschaften.  Thus  all  economic  and  social  ques- 
tions concerning  industry  and  labour  were  regulated  by  com- 

*Max  Schippcl,  Schicksalslunden  der  Arbeitsgemeinschajt,  Sozialis- 
tische  Monatshcftc,  1920,  p.  328. 


240  THE  GERMAN  CONSTITUTION 

mittees  in  which  the  employers'  associations  and  the  labour 
unions  were  each  represented  by  one-half  in  each  committee. 
The  Arbcitsgemeinschaft  is  a  treaty  of  peace. 

In  addition  on  December  23,  1918,  the  Commissars  of  the 
People  signed  a  decree  "on  collective  agreements,  workers 
and  employers  committees,  and  the  arbitration  of  labour  dis- 
putes." This  decree  ^  maintained  the  committees  which  were 
developed  during  the  war  by  virtue  of  the  law  for  patriotic 
service,  and  increased  their  powers.  Here,  too,  the  whole 
mechanism  rested  on  the  parity  principle.  According  to 
this  decree,  committees  of  workers  and  employers  had  to  be 
organized  in  all  industries,  in  all  the  administrative  bodies  and 
in  all  offices  where  there  were  at  least  twenty  labourers  or  em- 
ployés. These  had  as  their  mission  the  protection  of  the  eco- 
nomic interests  of  labourers  and  employés  against  employers 
in  the  factories,  administrative  bodies  and  offices.  The 
committees  had  to  supervise  in  co-operation  with  the  bosses 
the  carrying  out  of  the  various  provisions  in  the  collective 
contracts.  In  factories  where  there  was  no  collective  contract 
the  committees  were  supposed  to  co-operate  in  the  regulation 
of  wages  and  other  conditions  of  labour  in  agreement  with  the 
economic  representatives  of  the  workers  and  employés.  It 
was  their  task,  in  addition,  to  maintain  good  relations  among 
the  workers,  as  well  as  between  the  workers  and  employers. 

It  would  seem  that  an  evolution  thus  commenced  could 
have  continued  normally  and  without  difficulty,  and  that 
economic  and  social  problems  raised  by  the  reorganization  of 
Germany  could  thereafter  be  regulated  by  the  Arbeitsgemein- 
schaften;  that  is  to  say,  by  direct  agreement  between  em- 
ployers associations  and  labour  unions.  But  the  problem  was 
peculiarly  complicated  by  the  introduction  and  rapid  diffu- 
sion in  Germany  of  Russian  revolutionary  ideas.  The  Soviet 
differs    essentially    from    the    committee    above    described. 

^It  has  been  changed  by  a  law  of  May  31,  1920.  {Reichsgesetzblatt, 
1920,  p.  1128.) 


THE  "ANCHORAGE"  OF  COUNCILS        241 

Whereas  in  the  latter  employers  and  employés  are  placed  on 
terms  of  equality  and  the  committee  itself  becomes  a  purely 
economic  institution,  the  Soviet,  according  to  the  Russian 
conception,  is  a  political  organization,  whose  purpose  is  to 
eliminate  the  employers  and  to  establish  the  dictatorship  of  the 
proletariat.  The  Soviet  must  have  in  its  hands  all  the  politi- 
cal and  economic  power  of  the  State. 

As  to  this  conception  of  the  political  omnipotence  of  the 
Council,  we  have  seen  that  powerful  opposition  ensued  on  the 
morrow  of  the  Revolution  and  that  in  January,  1919,  the 
Social  Democrats  remained  in  full  control  of  power  after 
having  eliminated  the  Independents.  We  know  that  this 
struggle  continued,  however,  and  it  will  be  recalled  what 
organizations  the  Independents  provided  for  and  wished  to 
institute  in  order  to  assure  to  the  Workers  Councils  the  politi- 
cal sovereignty  they  claim.  Parallel  to  the  political  struggle 
between  the  Social  Democrats  and  the  Independents,  there 
developed  another,  on  the  economic  field,  between  the  Trade 
Unions  and  the  Councils,  which  found  themselves  in  conflict 
as  much  over  what  reforms  should  be  demanded  by  the  work- 
ing class  as  over  the  rôle  these  two  groupings  should  respec- 
tively retain  in  the  struggle  for  the  recognition  of  their  claims. 

The  Trade  Unions  declared  themselves  satisfied  with  the 
agreement  they  had  concluded  with  the  employers,  as  well  as 
with  the  decree  of  December  23,  1918,  which  Legien,  President 
of  the  General  Confederation  of  Labour,  called  "The  Great 
Charter  of  Labour."  They  were  convinced  that  thereafter 
there  was  nothing  more  to  do  but  to  wait  for  time  to  develop 
logically  and  peacefully  the  rôle  of  the  Arbcitsgemeinschaften 
and  of  the  Committees  provided  for  by  the  decree  of  1918. 
They  did  not  believe  that  in  this  evolution  there  was  any 
room  for  Councils.  It  was  they,  the  Trades  Unions,  that  had 
theretofore  been  the  only  ones  to  occupy  themselves  with 
economic  questions,  and  they  did  not  propose  to  permit  special 
groups,  operating  in  isolated   factories,  to  deprive  them  of 


242  THE  GERMAN  CONSTITUTION 

their  traditional  mission,  Legien  in  particular  did  not  want 
to  hear  any  talk  of  the  Councils.  They  did  not  seem  to  him 
to  be  able  to  "incorporate  themselves  in  the  actual  hierarchy 
of  the  organizations  and  agencies  of  the  workers."  He 
protested  against  any  concession  to  the  system  of  Councils, 
and  declared  that  the  only  organisms  in  position  to  defend  the 
economic  interests  of  the  working  class,  were  the  Trades 
Unions. 

But  an  increasingly  important  part  of  the  working  class, 
attracted  by  the  ardent  propaganda  of  the  theoreticians  of 
the  Councils  system,  physically  and  mentally  depressed  by 
misery  and  unemployment,  irritated  by  the  mistakes  of  the 
Cabinet  and  disillusioned  by  the  impotence  of  the  Assembly 
of  Weimar,  rallied  to  the  doctrines  of  the  Councils.  The 
Trades  Unions  were  no  longer  believed  by  them  able  to  lead 
the  battle  which  would  assure  to  the  workers  the  preponderant 
rôle  which  should  be  theirs  in  economic  matters.  They  showed 
during  the  war,  co-operating  with  the  militarists  and  the 
bureaucrats  of  the  Empire,  that  they  were  always  ready  to 
compromise.  They  were  directed  by  veritable  functionaries, 
whose  whole  careers  developed  within  the  Trades  Union  ad- 
ministration and  who  had  no  qualification  for  representing  the 
working  class.  In  order  to  secure  what  the  working  class 
wants  these  claims  must  be  taken  in  hand  by  organs  issuing 
directly  from  the  workers — militant  organizations  in  position 
to  lead  a  swift  energetic  fight — these  organs  being  the 
Workers  Councils.  The  Councils  must  he  placed  above  the 
unions,  and  it  is  to  them  that  belongs  the  right  to  decide  on 
the  campaigns  that  shoMd  be  waged. 

Between  these  two  opposite  conceptions  there  arose  aa  in- 
termediate theory.  The  trades  imionists  of  the  later  school 
and  the  Christian  Trades  Unionists,  energetically  as  they  re- 
jected all  economic  dictatorship  by  the  Councils,  held,  how- 
ever, that  there  is  something  just  and  legitimate  in  such 
theories.    Giesbert,  who  holds  an  important  situation  in  the 


THE  "ANCHORAGE"  OF  COUNCILS        243 

Christian  Trades  Unions  and  who  was  to  be  Minister  of 
Posts,  wrote  in  April:  "We  have  not  sufficiently  appreciated 
and  above  all  we  have  realized  too  late  the  degree  of  sound 
truth  in  the  idea  of  the  Councils.  The  reason  for  this  is  that 
this  idea  has  come  to  us  from  Russia  as  a  political  conception, 
and  also  because  it  arrived  accompanied  by  all  the  tragic 
manifestations  of  the  Russian  Revolution.  If  the  system  of 
Councils  assures  to  the  workers  the  right  to  participate  more 
completely  in  the  organization  and  development  of  economic 
life,  then  it  cannot  help  but  contribute,  if  this  is  done  in  a 
reasonable  manner,  to  the  reawakening  of  the  love  of  work 
and  the  establishment  of  a  close  community  of  interests  be- 
tween employers  and  employés."  ^ 

As  for  the  Cabinet,  it  declared  itself  from  the  first  against 
the  Councils,  and  in  an  official  communication  on  February 
26,  1919,  Scheidemann,  President  of  the  Council  of  Ministers, 
declared  that  the  Cabinet  never  considered  the  introduction 
of  the  Councils  System  in  Germany,  and  that  above  all,  if  any 
part  should  be  accorded  the  Councils,  it  could  only  be  that  of 
an  intermediary  between  the  employers  and  the  trade  unions. 

But  it  soon  became  impossible  for  either  the  Cabinet  or  the 
Trades  Unions  to  remain  in  this  almost  completely  negative 
position;  for  the  struggle  for  the  Mitbestimmungsrecht  ceased 
to  be  merely  a  debate  among  theoreticians.  At  the  beginning 
of  March  the  workers  in  the  metallurgical  industry  declared 
a  general  strike  in  Berlin;  and  in  April  the  miners  of  Central 
Germany  did  the  same. 

The  Cabinet  found  itself  forced  to  modify  its  point  of  view. 
Receiving  at  Weimar  a  delegation  of  strikers  come  to  present 
an  ultimatum  to  him,  Scheidemann  recanted  the  communi- 
cation of  February  26,  and  engaged  himself  by  a  written 
promise  to  effect  the  recognition  of  the  principle  of  Councils 
in  the  Constitution. ^  One  month  later  he  fulfilled  his  promise. 

^Deutsche  Allgemeine  Zeilung,  April  29,  evening. 

*In  the  discussion  that  arose  on  this  subject  an  expression  used  in  it 


244  THE  GERMAN  CONSTITUTION 

On  April  5,  a  new  note  made  known  under  what  conditions 
and  to  what  extent  the  Cabinet  envisaged  the  possibility  of 
organizing  and  utilizing  the  Councils.  He  proposed  to  in- 
scribe in  the  Constitution  an  article  proclaiming  in  general 
terms  the  right  of  workers  to  participate  in  common  and  on 
equal  terms  with  employers  in  the  regulation  of  questions 
of  wages  and  work,  as  well  as  in  the  development  of  the  forces 
of  production  in  the  common  economic  interest.  By  the  side 
of  special  Workers  Councils  there  were  to  be  mixed  Councils 
which  would  have  general  economic  authority. 

On  their  side  the  Trades  Unions  also  found  themselves 
obliged  to  seek  a  working  basis,  and  they  concluded  by 
agreeing  to  the  introduction  of  Councils  in  German  economic 
life,  on  the  condition  that  a  very  sharp  separation  be  marked 
between  the  powers  of  the  Factory  Workers  Councils  and  the 
Economic  Councils  on  the  one  hand,  and  those  of  the  Trades 
Unions  themselves  on  the  other.  Another  condition  was  that 
assurance  must  be  given  the  Trades  Unions  that  the  Workers 
Councils  would  fulfil  their  mission  in  accord  with  the  Trades 
Unions.  At  the  Congress  of  Nuremberg,  July,  1919,  the 
Trades  Unions  engaged  themselves  to  use  their  whole  influence 
to  secure  for  the  workers  and  employés  the  Mitbestimmungs- 
recht  in  the  various  industries  and  to  help  the  Factory  Work- 
ers Councils  to  play  an  effective  part. 

2. — CONSTITUTIONAL  PROVISIONS  RELATIVE  TO  THE  COUNCILS. 

It  was  agreed,  then,  to  recognize  for  wage-earners  and 
salaried  employés  the  right  of  co-operation  in  the  conduct  of 
industries  and  that  all  parties  to  the  productive  organization 
of  the  nation  must  co-operate  in  the  regulation  of  economic 
questions.  This  idea  is  developed  and  in  part  realized  in  the 
provisions  of  Article  165,  which  form  the  foundation  of  the 
future  Economic  Constitution. 

has  achieved  popularity  and  is  in  current  use.  The  strikers  demanded 
and  obtained  the  ''anchorage"  of  the  Councils  in  the  Constitution. 


PROVISIONS  RELATIVE  TO  COUNCILS    245 

The  Constitution  sets  forth  the  idea  that  the  economic 
organization  of  the  country  must  pursue  two  different  courses 
and  should  therefore  have  two  different  series  of  organs — the 
"Workers  Councils"  and  the  "Economic  Councils."  This 
double  organization  is  based  on  considerations  that  were 
expressed  by  Member  of  the  Assembly  Sinzheimer  at  the 
session  of  the  National  Assembly  on  July  21,  as  follows:  "In 
economic  life  there  is  both  a  conflict  and  a  community  of 
interests.  The  conflict  that  exists  in  our  economic  life  and 
which  it  is  impossible  not  to  perceive  is  the  conflict  between 
capital  and  labour.  It  is  therefore  necessary,  since  the  em- 
ployers are  already  represented  publicly  in  Chambers  of 
Commerce,  etc.,  that  the  side  of  labour  should  also  receive 
special  public  representation  which  should  include  all  wage- 
earners  and  salaried  employés.  The  mission  of  this  repre- 
sentation should  be  to  express  all  the  interests  of  the  working 
class,  as  such,  in  an  organized  manner,  through  a  public  organ 
of  representation.  This  public  organ  of  representation  is  the 
Workers  Council.  This  Council  is  a  unilateral  representation 
of  interests.  It  has  as  its  purpose  the  increase  and  realiza- 
tion of  the  economic  influence  of  the  working  class.  But  in 
economic  life  there  is  not  only  a  conflict,  there  is  also  a  com- 
munity of  interest.  The  latter  is  based  on  the  common  interest 
in  production  on  the  part  of  both  employer  and  employé. 
The  Economic  Councils  have  as  their  mission,  in  contrast  to 
the  Workers  Councils,  to  realize  these  common  'duties  of 
production,'  that  are  equally  incumbent  upon  employers  and 
employes.  They  must  satisfy  all  the  interests  of  production 
and  bring  into  co-operation  for  production  all  the  elements  that 
participate  in  it,  to  increase  production,  diminish  its  costs  and 
to  regulate  it  as  far  as  possible  according  to  considerations  of 
social  good." 

Workers  Councils  are:  Factory  Workers  Councils,  for  each 
establishment;  District  Workers  Councils,  organized  for  each 
economic  district;  and  the  National  Workers  Council,  whose 


246  THE  GERMAN  CONSTITUTION 

authority  extends  over  the  whole  German  territory.  These 
Councils  have  as  their  mission  the  safeguarding  of  the  social 
and  economic  interests  of  the  workers. 

The  Economic  Councils  are  organized  according  to  a  geo- 
graphical division.  They  consist  of  District  Economic  Coun- 
cils and  the  National  Economic  Council.  The  former  consist 
of  the  union  of  District  Workers  Councils  with  the  corre- 
sponding representatives  of  the  employers  and  other  interested 
classes  of  the  population.  The  National  Economic  Council 
consists  of  the  union  of  the  National  Workers  Council  with 
the  corresponding  representatives  of  the  employers  and  other 
"interested  classes  of  the  population."  The  Constitution  does 
not  state  precisely  what  is  to  be  understood  by  this  last  ex- 
pression. In  the  Constitutional  Committee  it  was  unani- 
mously agreed  that  the  consumers  shall  be  particularly  repre- 
sented in  the  Economic  Councils.  The  creation  of  these 
Councils  is  obligatory  and  legislators  are  bound  by  the  Con- 
stitution to  enact  the  necessary  laws  to  this  effect. 

In  addition  there  may  be  created  "autonomous  bodies" 
(Article  156,  par.  2)  the  administration  of  which  is  incumbent 
upon  Economic  Councils  organized  not  by  regions  but  by 
industries.  Unlike  the  regional  Economic  Councils,  the  crea- 
tion of  these  autonomous  bodies  is  only  optional;  they  must 
be  organized,  says  the  Constitution,  "in  case  of  urgent 
necessity." 

The  Constitution  specifies  with  a  little  more  detail  than 
for  the  Workers  Councils,  the  powers  of  the  future  Economic 
Councils.  These  have  for  their  purpose,  in  addition  to  general 
economic  duties,  to  co-operate  in  the  execution  of  socialization 
laws.  In  addition  the  Economic  Councils  of  the  autonomous 
bodies  are  charged  with  the  administration  of  enterprises 
placed  under  the  economic  collectivity,  such  as  coal,  potash, 
etc.i 

*See  p.  307. 


PROVISIONS  RELATIVE  TO  COUNCILS    247 

Finally,  the  National  Economic  Council  must  have  certain 
political  functions,  and  thereby  the  Constitution  makes  con- 
cession to  the  supporters  of  the  institution  of  an  Economic 
Parliament.  The  solution  adopted  constitutes  a  middle  ground 
between  the  views  held  by  the  latter  and  those  of  the  partisans 
of  a  purely  formal  democracy.  It  gives  to  the  National  Eco- 
nomic Council  a  certain  political  influence,  but  it  does  not 
accord  it  absolutely  any  power  of  execution.  It  has  the  right 
to  be  heard  on  all  bills  of  social  and  economic  character 
before  they  are  presented  to  the  Reichstag  by  the  Cabinet. 
It  has,  in  addition,  the  right  itself  to  propose  laws  on  social 
and  economic  matters,  and  the  Cabinet  is  obliged,  even  if  it 
does  not  approve  of  these  projects,  to  take  them  before  the 
Reichstag.  It  may  only  present  its  own  point  of  view  as 
opposed  to  that  of  the  Economic  Council.  Finally,  the  latter 
may  send  a  representative  from  among  its  members  to  pre- 
sent its  proposal  before  the  Reichstag.  The  situation  of  the 
Economic  Council  is,  on  the  whole,  on  the  social  and  economic 
field  very  analogous  to  that  of  the  Reichsrat. 

The  existence  and  the  activity  of  free  vocational  associa- 
tions, that  is  to  say,  the  unions  of  workers  and  employers,  are 
not  affected  by  the  institution  of  Councils.  Article  165, 
par.  1,  expressly  recognizes  vocational  organizations  of  workers 
and  employers.  In  theory  the  spheres  in  which  the  Councils 
and  these  organizations  respectively  move  are  distinct,  and 
the  differences  between  them  naturally  result  from  the  differ- 
ence in  the  aims  of  the  two  organizations.  After  the  Con- 
stitution, as  well  as  before,  these  unions  of  employés  and 
workers  had  as  their  function  the  regulation  of  the  condi- 
tions of  labour  and  of  wages  with  the  aid  of  collective  agree- 
ments; whereas  the  Workers  Councils  and  the  Economic 
Councils  are  concerned  with  questions  other  than  the  con- 
tractual determination  of  the  conditions  of  labour  and  wages. 
But  we  shall  soon  see  that  in  practice  this  separation  is  ex- 


248  THE  GERMAN  CONSTITUTION 

tremely  difficult  to  maintain  and  that  it  gives  rise  to  consider- 
able difficulties  between  the  Councils  and  the  unions. 

3. — FACTORY  WORKERS  COUNCILS. 

I. — Of  the  different  organisms  provided  by  the  Constitution, 
which  shall  be  created  first? 

Some  wanted  to  start  from  above.  They  wanted,  said  these, 
to  organize  first  the  National  Economic  Council,  and  to  charge 
it  immediately  with  the  important  functions  attributed  to  it 
by  the  Constitution,  as  in  the  conditions  prevailing  in  Germany 
at  present  these  powers  should  not  remain  without  titular 
direction.  They  desired  also  that  the  National  Economic 
Council  prepare  and  propose  the  bills  necessary  for  the  organi- 
zation of  inferior  councils.  In  other  words,  the  National 
Economic  Council  was  asked  to  be  the  Constituent  Assembly 
for  the  future  Economic  Constitution. 

Others  wanted  to  commence  from  below,  so  as  to  erect  the 
edifice  progressively,  and  not  to  construct  an  upper  story 
before  the  one  below  it  was  sufficiently  built  to  afford  a  solid 
foundation. 

It  was  the  latter  opinion  that  prevailed.  On  August  9,  1919, 
the  Cabinet  announced  a  bill  creating  the  Factory  Workers 
Councils.  It  was  urgent,  said  the  Cabinet,  that  these  Councils 
be  created  first,  because  there  already  existed  in  many  enter- 
prises Workers  Councils;  some  of  them  had  been  created  by 
the  provisions  of  collective  contracts,  others  by  the  will  of 
the  workers  which  had  made  itself  felt  during  the  Revolution, 
but  both  kinds  of  Workers  Councils  lacked  altogether  a  legal 
standing. 

The  bill  expressed  the  idea  that  the  power,  hitherto  accorded 
to  the  Committees  of  Salaried  Employés  and  Wage-Earners 
should  be  transferred  to  the  Factory  Workers  Councils,  but 
that  these  powers  should  be  considerably  enlarged.  This  bill 
was  such  as  could  be  expected  from  a  Cabinet  in  which  there 
co-operated,  in  addition  to  the  Social  Democrats,  the  Centre 


FACTORY  WORKERS  COUNCILS  249 

and  Democrats.  It  corresponded  to  the  economic  and  social 
ideas  of  the  trade  unionists  of  all  shades,  ideas  evolutionary 
and  not  revolutionary. 

From  Right  and  Left  the  most  strenuous  criticisms  were 
directed  against  this  bill. 

The  employers  recognized  that  it  was  necessary  to  institute 
workers  representation  in  each  industry  and  enterprise,  and 
they  accepted  the  creation  of  the  Councils,  in  which  both  em- 
ployers and  workers  would  be  represented,  which  would  dis- 
cuss questions  of  work  and  wage,  which  would  supervise  the 
execution  of  collective  bargains  and  which  would  serve  as  an 
intermediary  between  the  workers  and  the  bosses.  But  they 
energetically  rejected  all  measures  that,  under  more  or  less 
roundabout  devices,  tended  to  recognize  for  the  workers  any 
right  of  control  whatever  over  production  or  the  management 
of  enterprises,  since  merchants  and  manufacturers  must  above 
all  have  freedom  of  operation.  They  protested  energetically 
against  all  provisions  that  gave  the  Councils  the  right  to  in- 
tervene in  the  direction  of  business,  in  questions  of  hiring  and 
discharging;  just  as  they  rejected  the  proposals  that  the 
workers  be  allowed  to  participate  in  the  consideration  of  new 
technical  methods,  and  that  they,  the  employers,  must  submit 
their  balance  sheets  to  the  workers,  reveal  the  amounts  of 
their  profits  or  their  losses  and  admit  workers  as  members 
in  the  Administrative  Council. 

The  supporters  of  the  pure  doctrine  of  the  Councils,  on  the 
other  hand,  criticized  the  Cabinet's  proposal  for  the  opposite 
reason,  because  it  did  not  organize  the  real  workers  representa- 
tion, but  only  Councils  in  which  the  employers  and  the  workers 
have  the  same  right.  It  is  impossible  to  conciliate  labour  and 
capital,  said  they;  for,  the  co-operation  of  these  two  must 
inevitably  end  in  the  domination,  by  the  employers,  of  the 
workers.  The  Councils  must  be  made  up  exclusively  of 
workers  who  would  have  an  absolute  right  to  control  produc- 
tion.   The  powers  given  by  the  bill  to  the  Coimcils  were  illu- 


250  THE  GERMAN  CONSTITUTION 

sory  ;  they  would  be  only  petty  unions.  The  regulation  of  pro- 
duction would  remain  intact  as  before.  These  Councils  would 
be  allowed  to  examine  once  a  year  the  balance  sheets  of  each 
establishment,  but  they  could  not  control  the  direction  of  its 
business,  its  purchases,  its  selling  or  its  profits.  The  only 
real  advantage  would  consist  of  being  able  to  discuss  the 
questions  of  hiring  and  discharging. 

Thus  attacked  and  criticized  the  bill,  after  the  most  im- 
passioned discussion,^  after  many  important  alterations,  was 
finally  adopted  on  January  19,  by  a  vote  of  213  to  64.  This 
is  the  law  of  February  4,  1920. 

II. — The  organization  of  the  Factory  Workers  Councils 
must  be  supple  enough  to  permit  them  to  fulfil  their  mission, 
whatever  the  importance  or  the  form  of  the  factory  may  be. 
They  must  be  neither  too  small  nor  too  cumbersome;  they 
must  comprise  both  employers  and  employés;  each  of  these 
groups  must  be  in  position  to  defend  its  particular  interests; 
the  electoral  right  must  be  wholly  democratic  and  minorities 
must  be  insured  representation,  which  imposes  the  obligation 
of  establishing  proportional  representation;  those  delegated 
must  always  be  guided  by  their  duties  as  representatives. 
As  a  consequence  of  the  last,  it  must  be  provided  that  the 
assembly  of  electors  be  enabled  to  withdraw  its  support  from 
its  representatives  and  to  recall  them.  The  greater  part  of 
these  conditions  was  realized  by  the  law  of  February  4, 

The  forms  that  the  Factory  Workers  Councils  may  assume 
are  extremely  diversified. 

There  is  first  of  all  the  "Factory  Workers  Council,"  prop- 
erly so-called,  which  exists  in  every  industrial  or  commercial 

*It  will  be  recalled  that  in  order  to  obtain  increase  in  authority  for 
the  Factory  Workers  Councils,  the  Independents  organized  a  great 
manifestation  in  Berlin  in  January,  1920,  in  the  course  of  which  about 
forty  of  the  participants  in  the  manifestation  were  killed  on  the  steps 
of  the  Reichstag. 


CONDITIONS  OF  WORK  261 

unit  and  in  all  the  public  and  private  administratic«is  where 
there  are  at  least  twenty  workers. 

The  wage-worker  members  of  the  Factory  Workers  Council 
constitute  a  "Workers  Council"  and  the  salaried  employé 
members  make  up  an  "Employé  Council."  If  the  Factory 
Workers  Council  has  more  than  nine  members  it  elects  ac- 
cording to  the  principles  of  proportional  representation  a 
"Factory  Committee"  of  five  members.  If  the  Factory 
Workers  Council  comprises  both  representatives  of  workers 
and  of  employés,  each  of  these  two  groups  must  be  represented 
in  the  Factory  Committee. 

A  "General  Factory  Workers  Council"  must  be  created  for 
enterprises  of  the  same  kind  situated  in  the  same  locality  or 
in  adjoining  localities  and  belonging  to  the  same  owners,  if 
the  Factory  Workers  Council  in  each  plant  so  decide.  This 
organization  may  either  remain  in  juxtaposition  with  the 
Factory  Workers  Councils  of  the  different  plants,  or  it  may 
replace  them.  In  that  case  it  functions  as  a  common  Factory 
Workers  Council. 

A  "shop  chairman"  must  be  elected  in  the  place  of  a  Fac- 
tory Workers  Council  in  establishments  employing  less  than 
twenty  workers,  of  whom  at  least  five  must  be  electors. 

There  is  finally  a  "Factory  Assembly"  composed  of  all  the 
regular  employes  of  the  factory.  It  is  convened  by  the 
president  of  the  Factory  Council.  He  must  convoke  it  if  the 
employer  or  at  least  one-quarter  of  the  workers  demand  it. 

III. — ^The  powers  of  the  Factory  Workers  Councils  are  two 
kinds;  social  and  economic.  With  one  or  two  exceptions  they 
are  both  purely  deliberative  in  character. 

SOCIAL  powers:   (A)  Conditions  of  Work. 

(1)  The  Factory  Workers  Council  supervises  tlic  execution 
of  legal  decrees,  of  collective  bargains  and  of  arbitration 
decisions  in  favour  of  the  workers.    The  regulation  of  the  con- 


252  THE  GERMAN  CONSTITUTION 

ditions  of  work  by  collective  bargaining  remains  the  essential 
purpose  of  the  Vocational  Unions.  The  Factory  Workers 
Councils  cannot  and  must  not  replace  this  general  trade  union 
agreement  by  a  regulation  which  would  intervene  between  the 
workers  of  any  single  factory  and  the  management  of  that 
factory,  for  the  conditions  of  labour,  particularly  wage  scales, 
must  be  fixed  not  simply  according  to  the  conditions  prevailing 
in  any  single  factory,  but  according  to  the  general  situation  of 
the  industry.  On  the  other  hand,  the  Factory  Workers  Coun- 
cils must  see  to  it  that  the  conditions  of  w^ork  agreed  to  be- 
tween the  manufacturer's  union  and  the  labour  organizations 
are  strictly  carried  out,  and  must  adjust  any  difficulties  that 
may  arise  in  their  application.  Each  Council  must  perform 
the  same  function  in  regard  to  the  execution  of  arbitration 
decisions  and  the  carrying  out  of  legislative  regulatory  provi- 
sions relative  to  the  condition  of  the  workers. 

(2)  The  Factory  Workers  Councils  co-operate  in  the  fixing 
of  wages  and  other  conditions  of  work,  when  these  questions 
are  not  settled  by  collective  agreement.  But  it  is  understood 
that,  even  in  such  a  case,  the  Factory  Workers  Councils  must 
act  in  accord  with  the  Trade  Unions  concerned. 

(3)  They  co-operate  with  the  employer  in  the  adoption  of 
rules  for  the  factory  within  the  framework  of  the  collective 
bargains  in  operation. 

(4)  They  examine  the  questions  of  pensions  for  wounded 
veterans  and  compensation  for  those  hurt  in  course  of  work. 

(5)  They  establish  in  agreement  with  the  employers  rules 
concerning  the  hiring  of  wage-earners  and  salaried  employés 
and  they  have  the  right  to  oppose  their  discharge.  In  the 
respect  to  the  former,  the  law  specifies  that  the  rules  relative 
to  hiring  must  contain  no  provision  by  virtue  of  which  the 
hiring  of  a  worker  would  be  affected  by  his  political,  military, 
religious  or  union  activities.  When  these  rules  permit  it,  the 
right  of  the  Factory  Workers  Council,  in  so  far  as  it  concerns 
the  hiring  of  a  worker,  is  waived  and  it  is  the  boss  or  his  rep- 


EMPLOYERS  AND  WORKERS  253 

resentative  who  thereafter  decides  in  each  particular  case  of 
hiring.  But  if  the  boss  or  his  representative  violates  the  rule 
of  contract,  the  Council  of  Workers  or  the  Council  of  Em- 
ployes may  raise  a  protest.  If  an  agreement  is  not  thereupon 
reached  between  the  boss  and  the  council,  the  difficulty  is 
taken  before  the  competent  Arbitration  Committee  which  de- 
cides finally.  On  the  other  hand,  in  regard  to  discharges, 
the  law  of  February  9  gives  to  the  discharged  worker  the  right 
to  appeal  it  to  the  Workers  Council,  and,  if  an  agreement 
is  not  reached  by  this  Council,  to  appeal  to  the  Arbitration 
Committee  in  any  of  the  following  circumstances:  (a)  If  the 
discharge  is  due  to  the  fact  that  the  worker  is  active  in  certain 
political,  military,  denominational  or  trade  union  matters  or 
that  he  belongs  or  does  not  belong  to  this  or  that  political, 
denominational,  or  labour  organization;  (b)  if  the  discharge 
is  without  cause;  (c)  if  the  worker  is  discharged  because  he 
has  refused  to  do  any  piece  of  work  other  than  that  agreed 
upon  when  he  was  hired;  (d)  if  the  discharge  appears  par- 
ticularly severe,  and  justified  neither  by  the  attitude  of  the 
worker  nor  by  the  situation  in  the  industry. 

(B)     Differences  between  Employers  and  Workers. 

The  Factory  Workers  Councils  maintain  harmony  among 
the  workers  as  well  as  between  them  and  the  employer,  and 
insure  the  liberty  of  organization  among  the  workers.  They 
must  help  avoid  all  troubles  or  disorders  that  may  make 
difiiculties  between  the  employers  and  the  workers,  and  if 
Buch  arise,  they  must  abate  the  trouble  as  soon  as  possible. 

It  is  not  the  part  of  the  Factory  Workers  Councils  to  take 
sides  in  economic  disputes  in  favour  of  this  or  that  tendency. 
It  is  the  organ  of  all  the  workers  of  any  industry  taken  to- 
gether, and  it  must  permit  any  labour  organization,  no  matter 
to  what  tendency  it  belongs,  to  enjoy  all  the  rights  and  all  the 
control  to  which  it  is  entitled. 


254  THE  GERMAN  CONSTITUTION 

(C)     The  Well-Bein^  of  the  Workers. 

(1)  The  Factory  Workers  Councils  must  combat  the  dan- 
gers of  occupational  accidents  and  diseases. 

(2)  They  must  co-operate  in  the  creation  of  pension  funds, 
the  building  of  workers'  homes,  and  other  institutions  of  well- 
being  in  the  factory. 

Economic  powers. —  (1)  The  Factory  Workers  Council  aids 
by  its  technical  advice  the  employer  in  giving  the  factory  as 
high  an  economic  efficiency  as  possible,  and  co-operates  in 
introducing  in  the  factory  new  methods  of  work.  This  co- 
operation on  the  part  of  the  Factory  Workers  Council  assumes 
that  the  employer  keeps  it  in  touch  with  the  condition  in  the 
industry  and  with  the  most  important  events  in  it.  The 
Council  may  therefore  demand  that  the  employer  supply  the 
Factory  Committee,  or  the  Council  with  all  the  necessary 
information  on  the  work  and  the  condition  of  workers,  and 
that  he  show  the  pay-rolls — for  the  purpose  of  checking  up 
with  the  schedules  agreed  upon  by  collective  contracts — and 
all  other  documents  necessary  for  the  supervision  of  the 
execution  of  collective  agreements.  This  right  of  inspection 
is  limited  in  two  respects.  On  the  one  hand,  the  Factory 
Workers  Council  can  only  examine  records  on  the  economic 
aspects  of  the  factory,  thus  excluding  all  political,  imion,  mili- 
tarist, denominational,  scientific  or  other  investigations  on  the 
part  of  the  Councils.  On  the  other  hand,  the  law  specifies 
that  this  right  of  examination  must  not  be  exercised  in  such 
a  way  that  it  jeopardizes  secrets  of  the  factory  or  commerce. 
The  question  remains  as  to  what  must  be  imderstood  as  a 
secret  of  the  factory  or  of  commerce;  this  must  be  settled  by 
judicial  decision.  From  the  first  moment  commentators  on 
the  law  of  February  4th,  held  that  business  contracts,  records 
of  profits  and  loss,  the  schedules  and  payrolls,  estimates  of 
net  cost,  and  the  purchase  price  of  raw  material  are  not 


ECONOMIC  POWERS  255 

questions  that  the  Factory  Workers  Councils  are  forbidden 
to  investigate.  In  addition  the  employer  must  at  least  once 
every  quarter  furnish  the  Factory  Workers  Council  with  a 
report  on  the  situation  and  the  progress  in  general  of  the 
factory,  on  its  output  and  on  its  prospective  needs  in  the  way 
of  workers.  Finally  the  Factory  Council  may  demand  that 
every  year  a  balance  sheet  for  the  factory  and  a  statement 
of  profit  and  loss  for  the  preceding  year  shall  be  submitted 
to  the  Factory  Conmiittee,  or  the  Council,  if  there  is  no 
Factory  Conamittee. 

(2)  In  the  factories  that  have  Administrative  Councils,^ 
the  wage-earners  and  salaried  employés  are  represented  on 
these  councils  by  one  or  two  delegates.  This  representation 
of  workers  on  Administrative  Councils  has  aroused  among  the 
employers  the  liveliest  opposition.  The  Cabinet's  project 
provided  that  the  worker  representatives  have  the  same  rights 
and  duties  as  the  other  members  of  the  Administrative  Coun- 
cils. But  the  National  Assembly  has  not  followed  the  Cabinet 
on  this  point  and  has  limited  the  power  of  the  workers'  repre- 
sentatives in  the  Administrative  Council  to  the  mere  state- 
ment of  the  interests  and  claims  of  the  workers,  and  to  the 
execution  of  their  votes  and  wishes  concerning  the  organization 
of  the  factory.  In  addition  this  representation  must  be  regu- 
lated by  a  special  law,  and,  until  such  a  law  is  passed,  that 
of  February  4  confines  itself  to  prescribing  that  the  repre- 
sentatives of  the  workers  have  a  seat  and  voice  in  all  the 
meetings  of  the  Administrative  Council,  but  that  they  re- 
ceive no  remuneration  other  than  the  pay  for  the  time  of 
attendance  at  the  meetings.  They  are  obliged  to  keep  confi- 
dential what  they  learn  at  the  meetings  of  the  Council.  The 
underlying  spirit  intended  for  the  workers'  representation  in 

'These  enterprises  are:  Stock  companies,  limited  joint-stock  com- 
panies, mutual  insurance  companies,  and  eventually  limited  liability 
companies. 


256  THE  GERMAN  CONSTITUTION 

the  Administrative  Council  is  indicated  as  follows:  "The 
granting  of  so  extensive  a  power,  changing  the  right  of  co- 
deliberation  generally  accorded  to  the  working  class  into  a 
right  of  codecision,  is  proposed  in  the  conviction  that  nothing 
is  better  calculated  to  increase  the  love  of  work,  the  sentiment 
of  responsibility  and  the  output  of  industries  than  the  right 
accorded  to  workers  to  co-operate  under  their  own  respon- 
sibility in  the  supreme  direction  of  the  factories." 

One  cannot  conclude  the  study  of  the  economic  powers  of 
the  Factory  Workers  Councils  without  saying  a  word  on  the 
question  of  the  co-operation  of  these  Councils  in  the  socializa- 
tion process.  The  supporters  of  the  theory  of  Councils  have 
always  forcefully  insisted  on  this  co-operation  to  justify  the 
necessity  of  giving  the  maximum  power  possible  to  the  Fac- 
tory Workers  Council.  But  the  law  of  February  4  does  not 
grant  these  councils  in  economic  matters  anything  but  powers 
of  deliberation,  hardly  even  conceding  them  the  right  of  deci- 
sion; nor  does  it  give  them  any  privilege  other  than  that  of 
supporting  and  helping  their  employers  in  the  achievement  of 
the  factory's  purposes.  Thereby  is  denied  all  action  on  the 
part  of  the  Factory  Workers  Councils  that  might  directly 
influence  the  socialization  of  the  factory  itself.  The  law  of 
February  4  seems  to  take  the  point  of  view  opposed  to  that 
of  socialization. 

Socialization  is  a  work  relegated  exclusively  to  the  State 
and  legislation.  It  cannot  be  included  in  the  mission  of  the 
workers'  representations  in  a  factory.  To  socialize  is  to 
modify  economic  organization  and  the  right  of  property,  and 
this  change  cannot  be  made  except  by  law.  Further,  no  par- 
ticular factory  can  be  socialized  of  itself,  that  is  to  say,  be 
transformed  by  itself  into  the  property  of  a  community.  The 
work  of  socialization  must  be  undertaken  by  whole  divisions 
of  industry.  To  accomplish  this  work  it  is  not  the  Factory 
Workers  Councils  that  are  competent,  but  only  the  parlia- 
mentary representation  of  the  whole  people. 


THE  TRADE  UNIONS  AND  THE  COUNCILS    257 

However,  among  the  partisans  of  the  Factory  Workers 
Councils,  some  hope  that  these  Councils  will  be  able  to  give 
the  workers  a  socialist  education  by  affording  them  the  chance 
to  participate  in  economic  affairs.  They  believe  that,  thanks 
to  the  Workers  Councils,  there  will  finally  be  formed  a  work- 
ing class  ready,  under  responsibility,  to  fulfil  administrative 
duties  in  a  socialist  commonwealth.  The  Factory  Workers 
Councils  according  to  them  will  be  a  school  for  socialism.^ 

4. — THE   TRADE  UNIONS   AND  THE   COUNCILS. 

Such,  in  outline,  is  the  law  of  February  4,  1920.  The  first 
elections  of  the  Factory  Workers  Councils  were  held  during 
the  month  of  May  that  followed.  Immediately  there  broke 
out  disputes  and  rivalries,  more  violent  than  before,  between 
the  Trade  Unions  and  the  partisans  of  the  Councils  systems 
over  the  rôle  which  the  Factory  Workers  Councils  should  play, 
and  particularly  over  the  relations  that  should  subsist  between 
these  Councils  and  the  Trade  Unions. 

The  union  leaders  wanted  to  maintain  their  traditional 
policy,  "the  wage  policy"  of  the  joint  committee  and  the 
Arbeitsgemeinschajt.  They  held  that  economic  and  social 
reforms  can  only  be  accomplished  progressively,  given  the 
complexity  of  economic  phenomena,  and  they  were  convinced 
that  the  necessary  evolution  will  take  place  naturally,  thanks 
to  co-operation  of  employers'  and  employés'  organizations  in 
the  Arbeitsgemeinschaften. 

The  development  of  these  organisms  since  the  revolution 
seems  to  support  their  opinion.  On  the  basis  of  agreements 
concluded  in  December,  1918,  the  Arbeitsgemeinschaften  have 
taken  on  considerable  extension.  Little  by  little  the  organisms 
provided  by  the  statute  of  December  4,  1918,  have  been  cre- 
ated and  expanded.  Not  only  have  individual  Arbeitsgemein- 
schaften been  established  between  employers'  and  employés' 

*See  Paul  Umbreit,  das Bctricbsràtcgcsctz,  Berlin,  1920,  pp.  20-21. 


258  THE  GERMAN  CONSTITUTION 

organizations,  but  these  have  also  been  formed  into  larger 
groups.  For  example,  the  Arbeitsgemeinschaft  of  the  Ruhr 
mines,  those  of  the  Sarre,  of  Saxony  and  of  Upper  Silesia  have 
united  into  a  central  Arbeitsgemeinschaft,  that  represents  the 
interests  of  the  whole  coal  mining  industry  of  Germany.  It  is 
administered  by  a  Central  Council  composed,  of  course,  of 
equal  numbers  of  employer  and  worker  delegates.  A  great 
number  of  other  industries  have  organized  on  the  same  model 
and  they,  too,  have  added  above  the  local  organs  a  Central 
Council  that  represents  the  general  vocational  interests. 
Finally,  the  Central  Committees  of  the  different  industries 
have  joined  and  thus  created  on  December  12,  1919,  a  central 
Arbeitsgemeinschajt,  which  constitutes  the  supreme  organiza- 
tion and  which  is  charged  with  settling  by  direct  agree- 
ments between  employers  and  employés  and  on  a  parity 
basis  all  the  problems  that  touch  the  life  of  the  industries  and 
trades  in  Germany.  This  is  sub-divided  into  fourteen  voca- 
tional groups:  iron,  provisions,  construction,  textile,  clothing, 
paper,  leather,  transports,  glass  and  ceramics,  chemistry,  oils 
and  fats,  forest  and  land  workers,  mines  and  lumber.  The 
Central  Executive  Committee  (Central  Vorstand)  is  com- 
posed of  twenty-three  members  chosen  by  the  employers  and 
twenty-three  by  the  workers.  Other  Committees  are  created 
on  which  the  Central  Committee  places  part  of  its  work. 
Seven  such  have  already  been  constituted,  on  the  study  of 
wages,  labour  legislation,  economic  policy,  raw  material,  coal 
and  transports,  tariffs,  the  execution  of  the  treaty  of  peace 
and  the  internal  regulations  of  the  Arbeitsgemeinschaft. 

All  this  movement,  say  the  trade  unions,  represent  unde- 
niable progress.  For  the  hostile  interests  of  employer  and  em- 
ployé is  substituted  the  interest  of  the  vocation  as  a  whole, 
which  creates  in  the  employers  and  workers  of  the  same 
vocation  a  consciousness  of  the  community  of  their  interests 
and  engenders  among  the  different  industries  a  fruitful 
rivalry.    In  uniting  the  Arbeitsgemeinschaften  of  all  the  in- 


THE  TRADE  UNIONS  AND  THE  COUNCILS   259 

dustries,  conflicting  interests  are  placed  in  equilibrium  and 
neutralized  and  there  remains  only  common  consciousness  of 
national  interests. 

What  can  the  Factory  Workers  Councils  do  otherwise  than 
enter  into  the  framework  of  already  existing  organisms  and, 
directed  by  the  Trades  Unions,  aid  in  the  development  of  these 
organisms?  In  other  words,  the  Factor}^  Workers  Councils 
— and  this  is  also  the  formal  will  of  the  legislator — should  be 
the  delegates  of  the  Trades  Unions  in  each  factory  to  super- 
vise there  the  application  of  the  agreements  adopted  by 
the  Trades  Unions  and  the  employers  associations.  In  addi- 
tion what  could  the  Factory  Workers  Councils  do  if  they  had 
not  behind  them  the  power  of  the  strong  organizations  of  the 
Trades  Unions?  A  Factory  Workers  Council,  that  could  not 
count  on  the  support  of  a  strong  union,  could  exercise  no  useful 
activity  whatever.  It  would  be  soft  wax  in  the  hands  of  the 
employers.  If  they  want  to  do  efficacious  work,  the  Factory 
Workers  Councils,  even  though  they  are  the  direct  emanation 
from  the  workers  of  the  factory,  must  conduct  themselves 
as  organs  of  the  Trade  Union,  and  can  only  play  an  important 
rôle  if  they  march  hand  in  hand  with  the  Trade  Union. 

This  dependence  of  the  Factory  Workers  Councils  on  the 
Trade  Union  gives  rise  naturally  to  two  considerations.  The 
Factory  Workers  Council  is  without  resources,  whereas  the 
Trade  Union  is  rich;  the  one  cannot  undertake  anything 
without  the  aid  of  the  other.  But  naturally  it  will  not  obtain 
this  aid  unless  it  submits  to  the  guidance  given  it.  On  the 
other  hand,  in  order  to  discuss  adequately  with  the  employer 
the  difficult  problems  that  come  within  the  authority  of  the 
Factory  Workers  Council,  there  is  required  a  preliminary  edu- 
cation which  the  worker  does  not  possess  unless  he  has  had 
long  experience  in  Trade  Union  life.  He  often  lacks  the 
knowledge  and  the  experience  which  cannot  be  acquired  ex- 
cept slowly  and  in  the  school  of  the  Trade  Unions.    For  this 


260  THE  GERMAN  CONSTITUTION 

reason  also,  the  Factory  Workers  Councils  should  follow 
Trade  Union  direction. 

The  champions  of  the  system  of  Councils  do  not  concede 
this  subordination  of  the  Factory  Workers  Councils  to  the 
Trade  Unions,  There  is  an  essential  difference  between  the 
two,  they  declare.  The  Trade  Union  has  as  its  exclusive 
mission  the  preparation  and  the  direction  of  struggles  for 
wages  and  conditions  of  work  under  the  régime  of  capitalist 
production.  The  Factory  Workers  Council  is  warring  for  a 
new  system  of  production.  And  its  mission  is  to  prepare  the 
working  class  to  take  into  its  own  hands  the  direction  of  pro- 
duction. That  is  why  the  organization  of  the  Factory  Work- 
ers Council  must  be  independent  of  the  Trades  Unions,  and 
mu£t  develop  outside  of  the  fraonework  of  the  Trades  Unions. 

The  task  which  the  Factory  Workers  Councils  must  accom- 
plish and  which  must  serve  as  the  basis  of  all  their  future 
activity,  is  to  achieve  a  unity  of  front  of  the  whole  working 
class.  The  Trade  Unions  have  not  yet  brought  themselves 
to  take  the  initiative  in  this  fundamental  reform.  At  the 
present  time  workers  are  still  scattered  among  approximately 
jBfty  Trades  Unions,  which  are  divided  still  further  into  a 
number  of  sections  and  branches.  There  is  an  inextricable 
network  of  collective  contracts,  "tariffs,"  and  wage  agreements 
down  to  the  smallest  labour  group,  representing  a  great  amount 
of  work;  but  this  cannot  in  the  least  ameliorate  the  economic 
condition  of  the  working  class. 

One  thing  must  immediately  be  abolished,  the  Arbeitsge- 
meinschaft,  because  it  is  contrary  to  the  doctrine  of  the  class 
struggle,  and  because,  under  the  pretext  of  co-operation,  it  in- 
sures the  domination  of  the  capitalist  over  the  worker. 

As  for  the  Trades  Unions,  the  champions  of  the  Factory 
Workers  Council  recognize  that  the  latter,  although  working 
on  a  different  plan,  must  remain  in  intimate  contact  with  the 
former.  But  there  is  an  indispensable  reform  to  be  realized. 
Organization  by  trades  must  be  replaced  by  organization  by 


THE  TRADE  UNIONS  AND  THE  COUNCILS    261 

industries  or  factories.  In  other  words,  all  the  vocations 
functioning  at  the  same  time  in  the  same  industry  must  be 
grouped  within  the  same  organization.  In  still  other  words, 
the  separation  of  wage-earners  associations  from  the  asso- 
ciations of  salaried  employés  must  be  done  away  with.  On 
the  contrary,  all  manual  and  intellectual  workers  of  the  same 
industry  must  join  together  and  consecrate  all  their  efforts 
to  a  common  end. 

Finally,  declared  the  partisans  of  the  Councils,  the  Factory 
Workers  Councils  cannot  remain  isolated  in  the  various  sepa- 
rate industries.  They  can  only  fulfil  their  function  if  they 
unite  in  district  assemblies  and  organize  in  such  a  way  as  to 
create  a  "Central  Organ  of  the  Factory  Workers  Councils," 
which  will  direct  the  activity  of  all  the  Factory  Workers 
Councils  of  Germany. 

These  arguments  were  not  without  effect  on  the  Trades 
Union  leaders.  They  still  maintained,  naturally,  the  principle 
that  the  Factory  Workers  Councils  must  enter  into  the  Trade 
Union  organization  and  that  they  must  remain  an  organ  of 
the  latter.  But  they  declared  themselves  ready  to  accept  a 
great  part  of  the  reforms  demanded  by  their  critics. 

Moreover  the  General  Federation  of  Labour  and  the  Gen- 
eral Federation  of  Salaried  Employes  organized  "A  Central 
Union  of  the  Factory  Workers  Council,"  whose  purpose  is  to 
unite  the  Factory  Workers  Councils  with  the  unions  of  wage- 
earners  and  salaried  employés,  and  to  incorporate  them  into 
the  whole  Trade  Union  organization.  To  this  end  they  under- 
took a  complete  local  organization  of  the  Factory  Workers 
Councils.  First  the  District  Committees  of  the  Trades  Unions 
were  to  proceed  to  a  redistribution  of  the  Factory  Workers 
Councils  in^o  fifteen  industrial  groups.  Each  industrial  group 
was  to  decide  independently  on  the  matters  that  concern  the 
vocations  included  in  this  group.  The  Group  Council  had  to 
include  a  member  of  the  Trade  Union  or  of  the  corresponding 


262  THE  GERMAN  CONSTITUTION 

union  of  salaried  employes.  This  organization  by  groups  was 
to  insure  the  co-operation  of  Factory  Workers  Councils  on  an 
industry  basis,  and  thus  attempt  to  meet  the  criticisms  of  par- 
tisans of  the  Councils.  Above  the  different  industrial  groups 
three  organs  were  provided  which  would  represent  the  Factory 
Workers  Councils  as  a  whole:  the  General  Assembly  of  all 
the  Factory  Workers  Councils,  the  Central  Council,  and  the 
Central  Committee. 

The  mission  of  the  Trade  Union  organization  of  the  Fac- 
tory Workers  Councils  would  be  to  give  the  latter  a  Trade 
Union  direction  and  development,  to  unite  in  the  factories  all 
economic  and  social  forces  available,  and  to  utilize  these  forces 
for  the  defence  of  the  common  interests  of  all  workers.  There 
is  thus  a  division  of  labour  between  the  traditional  mission  of 
the  Trade  Union  branches  and  that  of  their  local  committees, 
on  whom  would  be  still  incumbent  the  duties  of  specifically 
Trade  Union  organization,  whereas  questions  of  general,  so- 
cial and  economic  policy  would  be  given  over  to  the  "Central 
Factory  Workers  Council."  It  follows  that  the  two  parallel 
organizations  must  work  hand  in  hand  and  must  consult  each 
other  on  all  questions,  thus  doing  away  with  all  possibility  of 
conflict. 

Such  was  the  plan,  duly  elaborated  by  the  Trade  Unions, 
which  at  this  time  is  submitted  for  discussion  in  common  by 
the  Factor^"  Workers  Councils  and  the  Vocational  Associations 
of  Germany.  Naturally,  it  is  impossible  to  foretell  what  will 
result  from  these  deliberations.  All  that  can  be  said  at  present 
is  that  the  members  of  the  Factory  Workers  Councils  are 
almost  exclusively  elected  from  among  the  wage-earners  and 
salaried  employés  already  active  in  the  Trade  Unions,  and 
thus  the  conception  to  which  the  Trade  Unions  seem  to  cling 
above  everything  else,  the  incorporation  of  the  Factory 
Workers  Councils  into  the  Trade  Union  associations,  seems 
destined  to  be  realized  of  its  own  accord. 


THE  PROVISIONAL  ECONOMIC  COUNCIL    263 

5. — ^THE   PROVISIONAL   ECONOMIC    COUNCIL. 

These  discussions,  these  vacillations,  these  difficulties,  have 
up  to  now  prevented  the  government  from  submitting  the  nec- 
essary projects  of  laws  for  the  creation  and  organization  of 
Councils,  other  than  Factory  Workers  Councils,  provided  for 
by  the  Constitution.  In  May,  1920,  there  was  an  attempt  to 
propose  a  law  on  "Local  Workers  Councils."  But  the  govern- 
ment declared  that  it  had  not  yet  arrived  at  a  clear  concep- 
tion of  the  relations  between  the  Factory  Workers  Councils, 
the  future  Economic  Councils  and  the  employers'  organiza- 
tions, and  that  it  was  still  pursuing  its  studies. 

In  view  of  the  impossibility  of  continuing  the  building  of  the 
structure  from  below,  it  was  decided  to  change  the  method 
and,  returning  to  the  system  rejected  the  year  before,  resign- 
edly the  attempt  was  made  to  continue  from  above.  There 
was  thus  created  a  "Provisional  Economic  Council." 

The  organization  of  this  Council,  provisional  as  it  must  be, 
has  not  proceeded  without  presenting  great  difficulties,  which 
it  is  interesting  to  sum  up. 

I. — This  Council  must  consist  of  the  representatives  of  all 
economic,  agricultural,  commercial,  and  industrial  interests. 
The  first  question  that  came  up  was  to  fix  the  number  of 
representatives  to  be  allowed  to  each  different  interest.  Nat- 
urally, violent  conflicts  arose,  each  interest  fighting  for  the 
largest  representation  possible.  Instead  of  establishing  a 
proportion  based  on  the  respective  importance  of  the  various 
vocations  in  German  economic  life,  and  of  holding  to  this  pro- 
portion, the  Cabinet  increased  the  total  number  of  members 
of  the  Economic  Council  as  fast  as  this  or  that  interest 
claimed  a  stronger  representation,  with  the  result  that  the 
number  of  representatives,  originally  fixed  at  a  hundred,  in- 
creased to  280  and  finally  became  326.  It  is  clear  that  the 
resulting  proportion  that  came  from  these  successive  increases 


264  THE  GERMAN  CONSTITUTION 

favours  agriculture  to  the  detriment  of  industry  and  the  middle 
classes. 

A  place  was  given  to  the  representatives  of  consumers;  un- 
wisely, according  to  some  critics.  For  one  can  understand  the 
adding  of  the  consumers  to  the  assembly  of  the  producers  of 
some  one  single  industrial  group,  that  of  coal,  for  example, 
which  grows  always  at  the  expense  of  the  consumers.  But  in 
the  Economic  Council,  all  industries  and  vocations  are  by 
definition  represented;  the  producers  in  one  industry  are  the 
consumers  in  all  the  others  and  it  is  unnecessary  to  add  to 
them,  in  order  to  represent  the  interests  of  consumers,  addi- 
tional representatives,  who  by  hypothesis  are  only  consumers. 

The  326  members  of  the  Economic  Council  are  allotted  as 
follows: 

68  representatives  of  agriculture  and  forestry. 
6  representatives  of  market  industries  and  fisheries. 

68  representatives  of  general  industry. 

44  representatives  of  commerce,  banks  and  insurance. 

34  representatives  of  transport  enterprises. 

36  representatives  of  small  business  and  small  industries. 

30  representatives  of  consumers  (municipalities,  consumers' 
associations  and  organizations  of  women) . 

16  representatives  of  civil  servants  and  the  professions. 

24  other  persons  named  by  the  government. 

II. — There  then  followed  the  question  of  how  the  delegates 
of  each  group  are  to  be  appointed.  The  discussion  reverted  to 
the  question  whether  these  delegates  should  be  appointed  by 
vocation  or  region.  Where  employers  and  workers  were 
grouped,  the  principle  of  parity  was  naturally  adhered  to. 
Agriculture,  for  example,  which  is  entitled  to'44  delegates,  was 
represented  by  22  land  owners  and  22  agricultural  workers. 
On  the  other  hand,  the  mode  of  nomination  in  all  groups 
representing  workers  offered  but  few  problems,  for — at  least 
until  the  Factory  Workers  Councils  have  united  and  become  or- 


THE  PROVISIONAL  ECONOMIC  COUNCIL    265 

ganized  geographically  over  the  whole  Reich — the  only  labour 
organizations  are  those  of  the  Trade  Unions;  that  is  to  say, 
organizations  almost  exclusively  vocational,  and  the  labour 
delegates  to  the  Economic  Council  cannot  be  elected  except 
by  means  of  these  organizations.  But  the  problem  became 
much  more  complex  in  the  case  of  the  election  of  representa- 
tives of  employers  and  property  owners.  These  had,  in  addi- 
tion to  their  industrial  associations,  organs  of  regional  rep- 
resentation, such  as  chambers  of  commerce,  chambers  of 
agriculture,  boards  of  trade,  etc.  Should  their  delegates 
throughout  be  elected  by  regional  organs  or  by  associations? 
The  Reichsrat  replied,  by  chambers  of  commerce;  and  the 
National  Assembly  declared  for  associations. 

The  partisans  of  representation  by  chambers  of  commerce 
pointed  out  that  these  chambers  are,  according  to  existing 
legislation,  the  only  representatives  of  industry  and  of  com- 
merce in  public  law;  that  they  embrace  all  the  industrial  and 
commercial  circles,  considered  vocationally  as  well  as  re- 
gionally, and  that  they  constitute  an  electoral  body  more 
complete  than  the  organizations  on  a  purely  professional 
basis;  and  that,  in  contrast  to  the  associations,  the  chambers 
of  commerce  are  elected  by  all  the  manufacturers  and  mer- 
chants inscribed  on  the  register  of  commerce. 

The  supporters  of  the  associations  replied  that,  great  as 
was  the  service  rendered  by  the  Chambers  of  Commerce  as 
local  and  regional  corporations,  they  play  almost  no  rôle 
whatever  in  the  public  economy  of  Germany.  Their  influ- 
ence on  economic  management  is  practically  nil;  and  they 
are  limited  in  the  matter  of  projects  for  new  laws,  to  the 
voting  of  resolutions  that  have  no  outcome  whatever.  The 
special  business  associations,  however,  although  without  official 
standing  in  public  law,  are  acquiring  more  and  more  impor- 
tance in  the  public  economy  of  Germany.  What  is  most  im- 
portant is  to  make  up  the  Economic  Council  of  "heads" — of 


266  THE  GERMAN  CONSTITUTION 

the  most  eminent  men  from  each  industry,  whether  of  the 
North  or  the  South,  the  West  or  the  East. 

The  solution  adopted  does  not  seem  to  have  been  a  particu- 
larly happy  one.  Of  the  sixty-eight  industrial  delegates,  forty- 
eight  represent  vocational  divisions  and  twenty  represent 
regional  groups.  Of  the  first,  forty-two  are  designated  by  the 
Arbeitsgemeinshaft  of  the  employers  and  industrial  workers 
of  Germany  (twenty-one  employers  and  twenty-one  workers)  ; 
six  others  represent  the  Council  of  Coal  and  the  Council  of 
Potash.  Of  the  regional  representatives,  twenty  employers 
are  named  by  the  Chambers  of  Commerce  and  of  Agriculture 
but  twenty  workers  are  named  by  the  labour  element  of  the 
Central  Arbeitsgemeinschaft. 

III. — The  authority  of  the  Provisional  Economic  Council  is 
not  quite  the  same  as  that  of  the  final  Economic  Council, 
provided  by  the  Constitution. 

It  must,  and  that  was  its  essential  mission,  construct  the 
framework  on  which  the  future  Economic  Council  is  to  be 
erected,  and  determine  how  it  shall  be  elected.  This  neces- 
sitates its  organizing  in  advance  Workers  Councils,  aside  from 
Factory  Workers  Councils,  and  Economic  Councils  for  each 
locality,  which,  according  to  the  Constitution,  must  contribute 
to  the  formation  of  the  National  Economic  Council. 

In  addition,  the  Provisional  Economic  Council  must  exam- 
ine the  projects  of  all  important  lav/s,  economic  and  social  in 
nature,  that  the  Cabinet  is  required  to  submit  to  it  for  advice 
before  placing  them  before  the  Parliament.  It  must  be  heard 
on  proposals  for  decrees  and  important  regulations.  It  has 
itself  the  right  to  present  proposals  for  laws. 

These  powers  are  the  same  as  those  projected  for  the  final 
Economic  Council.  But  the  two  differ  in  an  important  re- 
spect. Whereas,  according  to  the  Constitution,  the  Economic 
Council  will  have  the  right,  when  it  differs  in  opinion  from  the 
Cabinet,  to  present  its  point  of  view  by  one  of  its  members 
before  the  Reichstag,  it  has  not  been  considered  feasible,  for 


THE  PROVISIONAL  ECONOMIC  COUNCIL    267 

constitutional  reasons,  to  recognize  the  same  right  for  the 
Provisional  Economic  Council. 

Generally,  however,  the  Provisional  Economic  Council  is 
considered  as  already  constituting  an  Economic  Parliament, 
and  at  the  commencement  of  its  work^  it  was  so  regarded 
by  the  press. 

It  does  not  deserve  this  name,  for  it  has  no  power  of  deci- 
sion. It  is  purely  and  simply  a  technical  Council  that  advises 
the  Cabinet  on  principal  economic  questions.  It  differs  from 
ordinary  technical  Councils  in  that  instead  of  being  appointed 
most  of  its  members  are  elected.  One  cannot  therefore  criti- 
cize it  from  the  point  of  view  of  formal  democracy,  in  the 
way  that  any  parliament  composed  according  to  the  parity 
principle  can  be  criticized,  viz.,  that  each  employer-member 
represents  much  fewer  electors  than  the  worker-members.  As 
it  is  here  a  matter  of  a  council  of  experts,  the  most  important 
thing  was  to  gather  the  best  qualified  authorities  of  the  whole 
country.  It  is  evident,  therefore,  that  in  the  present  state  of 
affairs  such  authorities  are  found  much  more  easily  among 
employers  than  among  workers.  The  relative  proportion  of 
these  two  elements  within  the  Provisional  Economic  Council 
matters  little  since  decision  lies  exclusively  with  the  assembly 
elected  by  universal  suffrage. 

Meanwhile,  however,  the  importance  of  the  services  that 
the  Economic  Council  can  be  called  upon  to  render  must  not 
be  underestimated.  It  is  undeniable  that,  as  at  present  com- 
posed, it  has  gathered  together  nearly  all  the  men  considered 
in  Germany  to-day  as  the  most  experienced  and  trained  au- 
thorities in  economic  matters.  It  must  not  be  lost  sight  of  also 
that  a  great  number  of  these  men,  aside  from  their  individual 
importance,  have  behind  them  the  support  of  the  whole  force 
of  the  extremely  powerful  vocational  and  economic  associa- 
tions by  which  they  were  elected. 

*It  met  for  the  first  time  on  June  30,  1920. 


268  THE  GERMAN  CONSTITUTION 

One  immediate  danger  menaces  the  Economic  Council.  It 
is  that  the  men  who  compose  it  will  let  themselves  be  guided 
on  the  technical  questions  they  are  to  examine  by  party  con- 
siderations. It  may  be  divided — as  is  natural — into  groups 
of  employers,  groups  of  workers,  groups  of  agriculturalists, 
industrialists,  and  merchants.  If  it  turns  out  to  be  an  assembly 
of  conservatives,  democrats,  Catholics  and  socialists,  it  is 
doomed  to  sterility. 

If,  however,  the  Economic  Council  avoids  this  danger  it 
will  render,  first  of  all,  the  service  of  clarifying  the  political 
atmosphere  itself.  The  members  will  defend  very  legitimately 
only  the  interests  by  which  they  were  charged  with  representa- 
tion. In  this  way  economic  groups  will  not  need  to  act  in- 
directly through  the  intermediate  agency  of  political  repre- 
sentatives. They  will  be  able  to  express  their  point  of  view 
clearly  and  support  their  interests  directly.  The  political 
parties,  too,  will  gain  thereby;  for  they  will  be  freed  of  all 
considerations  of  interest  and  they  will  no  longer  have  to 
complicate  technical  problems  by  imposing  on  them  their 
general  political  conceptions.  As  for  the  authority  that  will 
accrue  to  the  Economic  Council,  it  depends  entirely  on  itself 
whether  it  will  be  nullified  or  preponderant,  and  its  future 
lies  in  its  own  hands. 

Former  Under-Secretary  of  State,  von  Delbriick  said  before 
the  National  Assembly — speaking,  it  is  true,  of  the  Economic 
Council  to  be  organized  by  the  Constitution,  but  the  Provi- 
sional Economic  Council  is  nevertheless  its  precursor — that 
the  Economic  Council  is  without  doubt,  by  the  side  of  the 
Reichstag  and  the  Reichsrat,  a  third  legislative  assembly. 
For  such  an  assembly,  "called  upon  to  deliberate  on  the  most 
important  questions  in  the  national  life,  will  necessarily  have 
a  natural  tendency  to  enlarge  its  powers.  We  are  undoubtedly 
on  the  eve  of  a  period  in  which  the  Reichstag  and  the  Reichs- 
rat will  be  considered  as  one  side  of  a  balance,  and  the  Eco- 
nomic Council  as  the  other.     Behold  in  this  a  wholly  new 


SOCIALIZATION  269 

political  evolution.  There  will  come  a  day  when  the  Economic 
Council  will  seek  to  become  the  heir  of  the  Reichsrat  and 
to  take  its  place." 

Will  this  prediction  be  realized?  It  will  if  the  Economic 
Council  is  able  to  render  the  government  and  the  people  the 
services  they  expect  of  it.  It  will  not  if  it  does  not  deserve  to 
be  heard  by  them  and  does  not  know  how  to  make  itself  heard. 

SECTION  II 

SOCIALIZATION 

In  order  to  reconstruct  in  Germany  the  public  and  private 
economy  destroyed  by  the  war  and  the  revolution,  it  is  not 
enough  to  give  the  producers  a  special  right  to  co-operate  in 
the  regulation  of  economic  questions;  nor  to  recognize  par- 
ticularly for  the  working  class  the  right  of  co-deliberation  in 
the  determination  of  these  matters.  It  is  hoped  that  such  meas- 
ures will  increase  production.  But  it  is  also  necessary  that 
no  part  of  production  be  lost  and  that  all  of  it  be  utilized  to 
the  utmost  for  the  community.  One  is  thus  led  to  inquire 
whether  the  system  of  production  and  the  distribution  of 
wealth,  such  as  prevails  under  a  capitalist  régime,  is  capable 
even  if  improved,  of  attaining  such  an  end;  whether  it  were 
not  better  to  substitute  a  new  system,  socialist  lor  not,  giving 
the  utmost  guarantee  that  production  will  benefit  the  entire 
community. 

We  must  inquire  what  attitude  the  Constituent  Assembly 
took  on  this  question  and  what  solution  it  adopted. 

1. — THE  PROBLEM  OF  SOCIALIZATION. 

On  the  morrow  of  the  Revolution,  power  passed  entirely  into 
the  hands  of  socialists,  that  is  to  say,  by  definition,  men  wliose 
programme  may  be  summed  up  in  these  words:  tlic  aboli- 
tion of  private  property  and  the  taking  over  by  the  state  of 
all  the  means  of  capitalist  production. 


270  THE  GERMAN  CONSTITUTION 

The  Independents  undoubtedly  would  have  set  about  at 
once  the  task  of  realizing  this  programme.  But  we  have  seen 
that  they  had  but  a  brief  period  of  power;  and  the  Social 
Democrats  seemed  less  in  a  hurry  to  keep  their  promises. 

For  the  moment  the  political  revolution  was  enough  to  ab- 
sorb all  their  activity,  and  they  postponed  the  economic  revo- 
lution. They  declared  that  an  industry  cannot  be  socialized 
until  it  is  "ripe"  for  such  a  measure.  But,  they  further  de- 
clared, this  maturity  cannot  be  suddenly  effected  by  a  vote  of 
Parliament  or  even  by  the  decision  of  the  majority  of  the 
people.  It  is  the  product  of  a  slow  social  development,  which 
may  find  its  expression  in  the  vote  of  a  majority,  but  which 
cannot  be  thereby  hastened.  To  tell  the  truth,  the  Social 
Democrats,  whom  events  had  placed  with  their  back  to  the 
wall,  perceived  how  difficult  it  is  to  put  into  practice  the 
vague  theories  with  which  they  had  heretofore  contented 
themselves.  Not  only  did  they  realize  that  the  solution  of 
economic  questions  raised  by  socialization  is  extremely  diffi- 
cult, but  they  became  also  convinced  that  it  was  necessary 
first  to  consolidate  some  of  the  elements  of  German  economic 
life  that  had  survived  the  war  and  its  unhappy  conclusion 
before  proceeding  to  experiments  which  might  accomplish  their 
ruin.  They  resolved  therefore  to  study  the  problems  of  so- 
cialization more  deeply  before  passing  to  its  realization.  For 
this  purpose  they  created,  November,  1918,  a  "Committee  on 
Socialization"  which  was  not  to  be  an  official  organ  but  a  free 
scientific  committee  charged  with  the  drawing  up  of  reports 
and  proposals  on  the  question  of  socialization.  It  consisted 
of  eleven  members  with  Kautsky  as  chairman. 

But  the  impatience  of  the  masses  did  not  give  the  Socialist 
Cabinet  the  respite  they  required.  The  people,  who  for 
years  had  been  promised  the  abolition  of  private  capitalist 
property,  and  who  saw  in  the  realization  of  the  Socialist  pro- 
gramme the  end  of  the  miserable  situation  into  which  the  war 
and  the  revolution  had  plunged  them,  demanded  immediate 


SOCIALIZATION  271 

measures.  The  general  strike  which  broke  out  in  Berlin  in 
March,  1919,  and  which,  as  we  have  seen,  prompted  the  Cabi- 
net to  promise  the  "anchorage"  of  the  Councils  in  the  Consti- 
tution, also  pushed  it  to  prepare  in  haste  two  projects  of  law — 
one  on  socialization,  the  other  on  the  regulation  of  the  coal  in- 
dustry, the  two  projects  being  adopted  within  a  few  days  by  the 
National  Assembly.  The  two  laws  carried  the  date  of  March 
23,  1919.  The  first  is  what  is  called  in  Germany  a  "blanket 
law"  or  a  "skeleton  law."  It  indicates  the  different  forms 
according  to  which  socialization  of  private  enterprises  may 
become  operative,  and  the  cpnditioas  in  which  these  enterprises, 
once  socialized,  may  be  exploited.  The  second  makes  imme- 
diate application  of  these  principles  to  the  coal  industry.  In 
addition  another  law  voted  several  days  later,  April  29,  1919, 
regulated  according  to  the  same  principles  the  potash  industry. 

Whereupon  the  members  of  the  Committee  on  Socialization, 
who  complained  of  having  their  work  constantly  impeded  by 
the  Cabinet,  and  their  recommendations  remaining  unheeded, 
handed  in  their  resignations  on  April  7,  1919. 

On  the  other  hand,  the  Minister  of  Public  Economy,  the 
Social  Democrat,  Rudolph  Wissel,  finding  the  measures  for 
socialization  taken  or  proposed  by  the  Cabinet  too  timid 
and  insufiicient  addressed  a  memorandum  to  the  Council  of 
Ministers  on  May  7,  which  had  great  reverberation  through- 
out Germany  as  soon  as  it  became  known.^ 

The  Cabinet,  said  Wissel,  followed  a  policy  inconsistent 
and  without  unity.  Within  the  Council  of  Ministers  a  deci- 
sion on  fundamental  questions  was  avoided  in  order  not  to 
put  the  coalition  in  danger;  and  the  few  measures  taken  were 
compromises  dictated  by  necessity. 

^This  memorandum  did  not  represent  the  personal  opinion  of  the 
Minister.  The  ideas  expressed  in  it  were  the  opinions  of  a  group 
that  included  both  socialists  and  bourgeois  elements,  men  like  Walter 
Rathenau,  von  Mbllendorf  (under-secretary  of  State  under  Wissel), 
Andreas,  a  banker,  Georg  Bemhard,  editor  of  the  Vossiche  Zciiung,  and 
others. 


272  THE  GERMAN  CONSTITUTION 

Meanwhile  the  economic  situation  of  Germany  was  in  an 
almost  desperate  state,  and  a  menacing  catastrophe  could 
be  avoided  only  by  completely  transforming  the  system  of 
production  that  prevailed  in  peace  times.  Wissel  declared 
that  he  was  not  speaking  of  expropriation,  for  that  would  do 
no  more  than  substitute  the  state  for  private  capitalism,  that 
is  to  say,  one  exploiter  for  another.  But  what  he  referred  to 
was  the  restriction  of  illegitimate  profits,  the  regulation  of 
prices  and  the  control  of  the  distribution  of  profits.  Produc- 
tion and  consumption  must  be  organized  according  to  a  co- 
ordinated plan  in  such  a  way  that  enterprises  may  be  ex- 
ploited in  the  interest  of  all  and  not  to  the  exclusive  profit  of 
some.  It  was  imperative  to  proceed  by  some  solution  as  a 
whole  and  not  by  incoherent  and  isolated  attempts. 

The  principal  measures  for  which  Wissel  demanded  imme- 
diate adoption  were  the  following: 

(1)  The  organization  of  the  system  of  Councils  by  a  special 
law  without  waiting  for  the  adoption  of  the  Constitution. 
They  must  include  organizations  of  workers  and  of  employers, 
regional  and  vocational.  These  last,  which  would  rest  on  the 
parity  principle  of  the  Arbeitsgemeinschaft,  would  have  for 
their  mission  the  direction  of  the  economy  in  the  vocation  they 
represented,  this  direction  to  follow  the  principles  decreed  by 
the  Cabinet.  There  must  be  in  addition  an  Economic  Council, 
which  will  be  the  supreme  organ  of  the  whole  German  collec- 
tive economy. 

(2)  Other  branches  of  production  must  be  regulated  on  the 
model  of  the  regulation  already  in  operation  for  coal  and 
potash.  The  next  to  be  thus  regulated  must  be  electricity  and 
the  cereals. 

(3)  The  State  must  take  a  more  and  more  important  part 
in  the  functioning  and  in  the  profits  of  industrial  enterprises. 
By  an  inheritance  tax  and  by  a  tax  on  capital  there  must  be 
put  into  the  hands  of  the  State  a  great  part  of  the  industrial 
fortunes.     Instead  of  collecting  these  taxes  in  money  or  in 


SOCIALIZATION  273 

war  loans,  the  state  must  become  the  proprietor  of  part  of  the 
enterprises  in  the  form  of  shares. 

(4)  The  stocks  and  bonds  of  the  industrial  concerns  of  the 
State  will  be  administered  not  by  a  Minister,  but  by  a  na- 
tional bank  which  will  conduct  its  business  according  to  purely 
economic  rules  to  the  exclusion  of  all  political  considerations. 

By  these  last  two  measures  will  be  realized  what  the  sup- 
porters of  this  system  call  a  "progressive  mediatization  of 
capital." 

(5)  There  will  be  created  funds  of  several  billions  of  marks 
which  will  be  administered  by  an  office  acting  in  close  relation 
with  the  vocational  economic  organization  and  designed  to 
procure  employment  for  German  workers. 

(6)  The  cost  of  necessities  which  Germany  must  import 
exceeds  greatly  the  cost  of  domestic  commoditi^.  This  cir- 
cumstance compels  the  increase  of  wages,  which  in  turn  causes 
the  cost  of  living  to  rise  and  lowers  the  value  of  money.  To 
counteract  this  part  of  all  wages  must  be  distributed  here- 
after in  provisions,  clothes,  etc.  Credits  will  be  opened  by 
financiers  and  by  the  State. 

(7)  Temporarily  the  right  to  strike  in  certain  industries 
vital  to  the  German  economy  will  be  restricted.  The  right  to 
stop  work  will  have  to  be  voted  by  nine-tenths  of  those  em- 
ployed in  that  industry. 

(8)  To  realize  this  programme  the  number  of  Ministers  who 
will  occupy  themselves  with  economic  questions  will  be  re- 
duced to  three.  They  will  constitute  within  the  Cabinet  an 
"Economic  Committee,"  whose  directions  will  have  to  be 
followed  absolutely  by  the  political  Ministers. 

On  the  whole  this  project  aimed  at  the  realization  of  a 
state  intermediate  between  capitalism  and  socialism. 

Defended  only  among  the  socialists  by  a  small  group  of 
doctrinaires,  this  project  had  against  it  at  the  same  time  the 
Independents,  the  bourgeois  parties  and  the  Social  Democrats. 
The  Independents  opposed  it  because  it  permitted  capital  to 


274  THE  GERMAN  CONSTITUTION 

sunùve.  The  bourgeois  parties  opposed  it  because  the  super- 
vised economy  prevented  the  free  play  of  economic  factors 
and  paralyzed  initiative.  The  Social  Democrats  opposed  it  for 
fear  of  dissatisfying  the  Centre  and  the  Democrats,  of  whom 
they  had  need  to  maintain  themselves  in  power.  Particularly 
opposed  to  Wissel's  project  were  the  Trade  Union  conceptions 
supported  in  the  Cabinet  by  the  Minister  of  Food  Supply, 
Robert  Schmidt.  He  presented  a  counter-project  which  em- 
bodied the  argument  which  the  Socialists  of  the  government 
opposed  to  the  theoreticians  of  socialism.  The  work  of  social- 
ization, said  they,  must  be  undertaken  but  slowly  and  the 
socialization  of  an  industry  must  wait  until  that  industry  is 
sufficiently  matured.  This  last  conception  prevailed  and  in 
July,  1919,  Wissel  resigned.  Thereupon  the  offices  of  the  Min- 
ister of  Public  Economy  and  that  of  Food  Supply  were  merged 
and  Robert  Schmidt  given  the  unified  post. 

It  was  to  be  expected,  therefore,  that  the  process  of  sociali- 
zation would  be  considerably  slowed  up.  In  fact,  the  Consti- 
tution of  the  month  of  August  confined  itself  to  specifying 
and  enlarging  in  several  respects  the  principles  of  the  law  of 
socialization  of  March  23;  and  for  several  months  there  was 
only  one  law  enacted  along  these  lines,  that  of  December  31, 
1919,  on  the  socialization  of  electricity. 

But  once  more  the  people  intervened.  It  may  be  recalled 
that  one  of  the  "Eight  Points"  of  the  agreement  imposed  on 
the  Cabinet  by  the  Trade  Unions  after  the  coup  d'état  by 
Kapp,  provided  that  the  Committee  on  Socialization  be  at 
once  reconvened,  that  representatives  of  vocational  associations 
be  added  to  it,  that  new  industries  be  socialized  and  that  the 
socialization  of  industries  already  decreed  be  enforced. 

In  conformity  with  these  engagements,  the  Cabinet  in  the 
beginning  of  May,  1920,  submitted  to  the  Reichstag  a  project 
of  law  that  provided  for  the  municipalization  of  a  certain 
number  of  industrial  enterprises,  and  reconvened  the  Com- 
mittee on  Socialization.    The  members  of  this  committee,  who 


THE  COLLECTIVE  ECONOMY  275 

were  authorized  to  add  to  their  number  new  colleagues  on  the 
condition  that  the  total  number  of  the  members  should  not 
exceed  thirty,  were  given  a  double  mission.  First  they  were 
to  study  and  clarify  the  fundamental  principles  of  socialism, 
for  the  purpose  of  determining  the  general  lines  along  which 
the  capitalist  system  should  be  transformed.  Then  they  were 
to  submit  concrete  and  immediate  proposals,  which,  inspired 
by  the  laws  of  collective  economy,  would  permit  the  common- 
wealth to  utilize  directly  the  natural  resources  and  the  sources 
of  power.  The  committee  had  also  to  study  how  the  indus- 
tries already  socialized  were  functioning,  what  results  had  been 
attained  and  to  propose,  if  necessary,  all  needful  changes. 

2. — THE  COLLECTIVE  ECONOMY. 

All  these  labours,  all  these  investigations,  all  these  discus- 
sions of  the  problem  of  socialization  had  one  result.  They 
have  shown  how  confused,  even  among  the  socialists,  is  the 
concept  of  socialism;  that  behind  the  same  word  may  hide  two 
economic  systems  extremely  different,  and  that  a  whole  series 
of  almost  imperceptible  gradations  may  exist  between  the 
capitalist  system  and  complete  socialism. 

The  Constitution  raises  the  following  principle:  Economic 
organization  must  cease  to  be  dominated  by  considerations 
of  private  interests  in  order  that  hereafter  it  may  be  inspired 
exclusively  by  considerations  of  public  interests.  Private  in- 
terests must  be  subordinated  to  collective  interests.  The 
present  economic  régime,  based  on  private  ownership,  must  be 
substituted  by  a  new  regime  "based  on  collective  ownership 
(Gemeinwirtschaft).    What  is  understood  by  this? 

In  its  largest  sense  the  expression  "collective  economy"  may 
be  defined  as  an  organization,  following  a  certain  predeter- 
mined plan,  of  the  economic  system  of  a  country  for  the  pur- 
pose, on  the  one  hand,  of  obtaining  as  large  an  increase  as  pos- 
sible in  production  by  the  union  of  all  forces  affecting  econ- 
omy; and,  on  the  other  hand,  for  the  purpose  of  devoting  a 


276  THE  GERMAN  CONSTITUTION 

proper  part  of  the  product  to  the  community  or  to  its  produc- 
tive members.^  Thus  a  system  of  collective  economy  is  any 
system  that  increases  public  influence  in  private  enterprise, 
on  the  condition  that  it  results  in  a  more  just  administration 
and  distribution,  particularly  in  the  cases  of  monopolized 
industries  already  organized  into  trusts  or  cartels. 

In  practice,  the  principle  of  collective  economy  may  be 
applied  under  three  different  forms: 

(1)  The  State  may  take  over  immediately  and  entirely  the 
ownership  of  the  industries  it  wishes  to  subject  to  the  new 
régime,  and  direct  by  itself  and  alone,  with  the  aid  of  its  civil 
servants,  the  industries  which  it  has  seized.  This  is  com- 
plete socialization. 

(2)  The  State  may  content  itself  with  participating  in  the 
ownership  of  certain  private  enterprises.  It  owns,  for  ex- 
ample, a  certain  number  of  shares  in  a  corporation.  In  such 
a  case,  it  does  not  manage  the  enterprise  wholly,  but  it  has 
the  right  of  codecision  in  the  general  direction  of  affairs. 
This  is  partial  socialization. 

(3j  Finally,  the  State  may  leave  in  the  hands  of  individuals 
the  ownership  of  enterprises  which  it  wishes  to  subject  to  the 
principles  of  collective  economy  ;  but  it  unites,  if  necessary  by 
constraint,  all  those  that  belong  in  one  industry  or  in  the  same 
category  of  industries,  such  as  chemistry,  coal,  metallurgy, 
etc.  Thus  united  the  enterprises  are  administered  by  means  of 
organs  in  which  are  represented  all  the  categories  of  the  popu- 
lation interested  in  it,  such  as  owners,  workers,  trade  unionists, 
consumers,  etc.  These  organs  must  be  guided,  in  the  direction 
they  give  to  this  management,  above  all  by  a  concern  for  the 
general  interests  of  the  commonwealth.  This  is  collective 
economy  properly  so-called  or  nationalization. 

This  last  form  of  collective  economy  is  particularly  inter- 
esting, be  it  said.  For,  on  the  one  hand,  it  avoids  the  just 
criticisms   of   bureaucracy   and   exaction   generally   directed 

^Reier,  Sozicdisierungsgesetze,  Berlin,  1920,  p.  14. 


THE  COLLECTIVE  ECONOMY  277 

against  socialism  properly  so-called.  On  the  other  hand,  it 
takes  into  account  the  principal  demands  of  the  working  class 
at  the  present  time  in  recognizing  for  the  workers  the  right 
to  participate  in  the  direction  of  business  enterprises.^ 

The  Constitution  does  not  clearly  choose  between  these 
three  different  methods  of  applying  the  principles  of  collective 
economy  in  the  large  sense  of  the  word.  It  declares  all  three 
possible  and  leaves  to  the  ordinary  legislature,  whenever  it 
is  desirable  to  regulate  an  industry  in  the  general  interest,  the 
task  of  choosing  the  bearing  it  wishes  to  give  such  regulations 
and  the  regime  to  which  it  wishes  to  subject  the  industry 
in  question. 

(1)  In  effect,  according  to  the  terms  of  Article  156  of  the 
Constitution,  the  Reich  may  transfer  private  business  enter- 
prises to  public  ownership,  that  is  to  say,  take  over  the  prop- 
erty for  the  Reich,  the  States,  or  for  the  municipalities. 

(2)  The  Reich  may  participate  itself  or  have  the  States  or 
the  municipalities  participate  in  the  administration  of  these 
enterprises,  or  may  secure  for  itself  in  some  other  manner  a 
decisive  influence  in  these  enterprises. 

(3)  Or,  finally,  without  taking  to  itself  all  or  part  of  these 
enterprises  the  Reich  may  regulate,  on  the  basis  of  autonomy 

^Wissel,  then  Minister  of  Public  Economy,  on  March  7,  1919,  before 
the  National  Assembly  thus  defined  collective  economy  properly  so- 
called:  "Collective  economy  means  the  organization  and  management 
of  private  economic  enterprises  in  the  interests  of  the  Reich,  the 
subordination  of  private  interests  to  collective  interests.  The  appli- 
cation of  this  general  principle  to  particular  c;ises  must  be  adapted 
to  the  special  conditions  of  the  different  branches  of  the  economy. 
Nothing  can  be  worse  than  to  want  to  make  the  economy  rigidly  uni- 
form. Every  economic  group  is  a  different  organism  that  demanda 
forms  appropriate  to  it.  This  seems  to  be  indicated  in  the  exterior 
forms  of  union,  such  as  capitalist  economy  practiced  in  its  associations 
and  cartels.  But  the  spirit  that  prevails  in  these  organizations  mu.st  be 
raised  above  purely  private  considerations  up  to  a  sense  of  responsibility 
toward  the  people  as  a  whole,  up  to  the  conception  of  a  collective 
economy.  Collective  economy  docs  not  mean  state  economy,  but 
autonomy.  The  State  is  not  the  master  of  economy.  It  can  and  should 
exercise  supreme  supervision  and  hold  in  equilibrium  the  opposing 
interests  with  justice  and  wisdom." 


278  THE  GERMAN  CONSTITUTION 

and  according  to  the  principles  of  collective  economy,  the 
production  and  the  distribution  of  wealth. 

In  this  last  case  the  Constitution  specifies  that  the  busi- 
ness enterprises  which  are  made  subject  to  a  nationalization 
measure,  shall  form  "an  autonomous  body"  (Selbstverwalt- 
ungskorper).  This  is  a  new  form  in  public  law.  The  "auton- 
omous body"  is  somewhat  analogous  to  ordinary  public  corpo- 
rations. It  administers  itself  with  the  organs  necessary  for 
it.  It  enjoys  great  independence,  but  it  is  nevertheless  subject 
to  supervision  by  the  State.  Article  156,  par.  2,  of  the  Consti- 
tution specifies  that  when  legislation  subjects  a  given  industry 
to  the  system  of  nationalization  and  organizes  the  autonomous 
body  it  must  constitute  the  administrative  organs  of  this  body 
in  such  a  way  that  there  shall  be  insured  the  co-operation  of 
all  the  producing  elements  of  the  people,  and  that  the  salaried 
employes  and  wage-earners  participate  in  administration  and 
that  the  production  and  distribution  satisfy  first  of  all  the 
interests  of  the  commonwealth. 

These  organs  form  the  Industrial  Economic  Councils  which 
we  have  already  examined.  An  example  will  illustrate  this 
hypothesis.  Legislature  decides,  for  instance,  to  subject  the 
chemical  industry  to  the  régime  of  the  collective  economy.  It 
combines,  therefore,  all  the  manufactories  of  chemical  products 
into  a  sort  of  obligatory  cartel,  the  bond  uniting  the  different 
manufactories  being  more  or  less  close  according  to  circum- 
stances. The  system  of  administration  by  "autonomous 
bodies"  will  consist  of  the  institution  of  one  or  more  organ- 
isms, such  as  Economic  Councils  of  the  Chemical  Industry,  in 
which  will  be  represented  all  the  individuals,  associations  and 
Councils  interested,  and  which  will  manage  together  the  Ger- 
man chemical  industry.  The  chemical  industry  will  thus  form 
an  autonomous  body,  that  is  to  say,  a  sort  of  public  corpora- 
tion under  the  supervision  of  the  State.  Further  than  this, 
however,  it  is  not  possible  at  the  present  time  to  specify  the 
distinctive  traits  of  this  new  legal  category.    We  must  wait 


THE  COLLECTIVE  ECONOMY  279 

until  legislation  has  organized  a  number  of  autonomous  bodies 
before  we  can  state  precisely  their  general  characteristics  and 
give  them  a  place  in  the  collective  institutions  of  public  law. 
Still  less  possible,  naturally,  is  it  to  forecast  the  economic 
consequences  to  which  they  may  give  rise. 

However,  the  Constitution  has  not  felt  that  it  should  give 
the  ordinary  legislator  absolute  freedom  to  proceed  according 
to  his  fancy  to  the  enactment  of  measures  for  socialization 
more  or  less  complete.  It  has  therefore  provided  certain  limits 
on  the  exercise  of  the  rights  it  confers  on  the  legislature. 

(1)  Only  the  legislature  of  the  Reich  may  enact  socializa- 
tion measures. 

(2)  No  industry  may  be  socialized  except  when  it  is  "ripe 
for  this  socialization."    This  is  the  so-called  maturity  clause. 

(3)  Enterprises  which  the  legislator  wishes  to  organize  as 
"autonomous  bodies"  may  not  be  so  proceeded  against  except 
"in  case  of  urgent  necessity." 

These  last  two  restrictions  may  seem  very  important.  In 
reality,  however,  they  constitute  a  purely  fictitious  restraint; 
for  the  legislature  is  the  sole  judge,  at  any  time  that  it  wishes 
to  socialize  an  industrj^,  as  to  whether  that  industry  is  "ripe" 
or  not,  and  whether  or  not  the  case  is  one  of  urgent  necessity. 

(4)  There  remains  finally  the  question  of  indemnity.  As 
may  well  be  imagined,  during  the  discussion  of  the  project  of 
the  socialization  law  as  well  as  during  the  deliberations  on  the 
project  of  the  Constitution,  this  question  was  very  vigorously 
discussed.  The  Socialist  parties  wanted  no  allusion  made  to 
this  question  in  the  texl  of  the  law  or  that  of  the  Constitution. 
The  bourgeois  parties  demanded  that  at  least  in  the  case  of 
complete  socialization  the  state  should  be  absolutely  obliged 
to  accord  an  indemnity.  It  was  impossible  to  arrive  at  agree- 
ment. So  that  although  the  principle  of  indemnity  was  in- 
corporated, it  was  left  to  the  legislature,  whenever  it  enacts  a 


280  THE  GERMAN  CONSTITUTION 

special  law  decreeing  a  socialization  measure,  to  decide  whether 
or  not  indemnity  shall  be  accorded  and  to  what  extent. 

In  accordance  with  the  above  provisions  a  certain  number 
of  industries  have  been  placed  under  the  régime  of  collective 
ownership,  where  they  are  about  to  be  transformed. 

For  the  coal,  potash  and  iron  industries  the  laws  of  March 
23,  of  April  29,  1919,  and  the  regulation  of  April  1,  1920,  have 
chosen  the  system  of  collective  ownership,  properly  so-called. 
That  is  to  say,  the  industries  of  coal,  potash  and  metallurgy, 
although  to  a  very  limited  extent,  have  been  organized  into 
autonomous  bodies,  self-administering  under  the  supervision 
of  the  Reich. 

As  to  electricity,  the  law  of  December  31,  1919,  provides 
that  electrical  plants  that  have  acquired  a  certain  importance 
will  become  the  property  of  the  Reich,  the  latter,  however, 
providing  a  suitable  indemnity. 

The  project  of  the  law  relative  to  municipalization,  finally, 
provides  that  municipalities  may,  with  the  authorization  of 
the  Reich,  transfer  to  the  régime  of  collective  ownership  pri- 
vate industries  that  serve  principally  common  local  needs. 
Full  authority  is  given  the  municipalities  over  all  that  con- 
cerns transportation,  water,  gas,  cinematographs,  theatres, 
burial,  baths,  etc.  These  enterprises  may  be  either  taken  over 
entirely  as  the  property  of  the  municipalities,  or  be  organized 
into  autonomous  bodies.  In  principle  the  municipality  is  re- 
quired to  indemnify  in  all  such  cases. 

It  is  impossible  to  examine  here  in  full  detail  these  or  later 
laws.  It  is  interesting,  however,  to  devote  several  pages  in 
describing  in  a  very  general  way,  in  view  of  the  great  im- 
portance of  the  coal  industry  at  the  present  time,  the  system 
into  which  it  has  been  transformed. 

3. — THE  REGULATION  OF  THE  COAL  INDUSTRY. 

The  crisis  in  coal  which  to-day  exists  in  almost  every  coun- 
try in  the  world  has  led  the  different  governments  to  take 


REGULATION  OF  THE  COAL  INDUSTRY   281 

various  measures  either  to  avert  it  or  to  diminish  it.  In  gen- 
eral, coal  mining  has  remained  in  the  domain  of  private 
economy.  Distribution,  however,  has  passed  more  or  less 
completely  into  the  domain  of  collective  economy.  The  sys- 
tems of  distribution  to  which  the  different  countries  have 
resorted  are  various.  According  to  the  given  circumstances 
they  adopt  one  or  another  of  three  possible  modes  of  public 
economy.  In  France,  the  distribution  of  mined  or  imported 
coal  is  carried  on  by  the  state  itself.  In  Germany  it  is  done 
by  a  group  of  organisms  in  which  are  represented  the  various 
interested  elements  of  the  population,  but  in  which  provision- 
ally the  mine  owners  predominate. 

It  is  advisable  to  study  first  the  existing  system  in  the  coal 
industry  in  order  to  understand  better  the  changes  we  are 
examining. 

I. — As  regulated  by  the  law  of  March  23,  1919,  and  the 
decree  of  August  21,  of  the  same  year,  the  mechanism  of  the 
coal  industry  consists  of  three  organs:  the  Colliers  Associa- 
tion, the  National  Association,  and  the  National  Coal  Council. 

The  German  Reich  is  divided  into  a  certain  number  of  coal 
mining  districts.  In  each  district  all  the  mine  owners  asso- 
ciations must  form  a  Colliers  Association.  If  this  cannot  be 
accomplished  voluntarily  the  Minister  of  Public  Economy 
promulgates  the  organization  by  means  of  a  decree.  Each 
Colliers  Association  must  have  a  Council  of  Administration, 
in  which  it  is  obligatory  that  the  workers  be  allowed  repre- 
sentation. In  addition,  in  the  Councils  of  Administration  of 
the  five  biggest  associations  there  must  be  admitted  a  repre- 
sentative of  the  salaried  employés.  The  Council  of  Admin- 
istration has  the  authority  commonly  accorded  to  the  coun- 
cils of  administration  of  stock  companies  by  the  Commercial 
Code;  it  appoints  its  own  president.  In  the  same  way  all  the 
owners  of  gasworks  that  produce  coke  are  united  for  the  whole 
territory  of  the  Reich  into  an  Association  of  Coal-gas  Manu- 


282  THE  GERMAN  CONSTITUTION 

facturers,  formed  on  the  same  model  as  the  Colliers'  Asso- 
ciations. 

The  Colliers  Associations,  the  association  of  Coal-gas 
Manufacturers  and  the  German  states  that  belong,  by  virtue 
of  ownership  of  mines,  in  the  Colliers  Associations,  are  united 
into  a  National  Coal  Association.  This  has  a  Council  of 
Administration  in  which  must  be  included  three  wage-earners 
and  salaried  employés  and  one  representative  of  the  con- 
sumers. 

The  National  Coal  Council  is  composed  of  sixty  members 
— representatives  of  the  states,  of  mine  owners  organizations, 
wage-earners,  oflBce  workers,  consumers,  etc.^  It  is  convened 
as  often  as  conditions  demand  and  at  least  once  every  six 

*  These  sixty  members  are  divided  as  follows: 
3  representatives  of  states; 
15  representatives  of  colliers'  organizations; 
15  representatives  of  mine  workers; 

1  employer  and  1  worketr  in  gasworks; 

2  salaried  employés  of  the  technical  service  of  the  mines; 
1  salaried  employé  of  the  commercial  service  of  the  mines; 
5  coal  merchants; 

1  employé  in  the  wholesale  coal  trade  ; 

2  employers  and  2  workers  in  industries  using  coal; 
2  representatives  of  consumers'  societies; 

1  user  of  coal  in  the  cities,  1  in  the  country; 

2  representatives  of  small  industries  using  coal; 
1  user  of  coal  for  railroads; 

1  user  of  coal  for  maritime  navigation; 
1  user  of  coal  for  river  navigation; 

3  mine  and  boiler  experts. 

The  representatives  of  the  states  are  named  by  the  Reichsrat  from 
among  the  municipal  administrations  and  consumers  of  coal.  The 
representatives  of  employers  and  employés  in  the  mining  industries  as 
well  as  the  twelve  representatives  of  the  colliers'  associations  are 
elected  by  the  mine  groups  of  the  Arbeitsgemeinschaft.  Two  repre- 
sentatives are  named  by  the  Prussian  Minister  of  Commerce  and  In- 
dustry. The  representatives  of  the  coal  trade  are  named  by  the  German 
Congress  of  Commerce  and  Industry.  The  representatives  of  the  em- 
ployers and  employés  of  the  industries  using  coal,  and  the  representa- 
tives of  the  employés  of  gasworks  are  elected  by  their  Arheitsgemein- 
schaften.  The  representatives  of  the  small  industries  using  coal  are 
elected  by  the  German  Chambers  of  Commerce  and  Industry.  The 
other  representatives  are  appointed,  on  the  advice  of  those  they  repre- 
sent, by  the  Minister  of  Public  Economy  of  the  Reich, 


REGULATION  OF  THE  COAL  INDUSTRY    283 

months.  It  must  in  addition  be  convened  if  at  least  ten  of 
its  members  or  the  Minister  of  Public  Economy  of  the  Reich 
demand  it.  It  decides  by  majority  vote.  It  creates  three 
technical  committees,  The  Economic  Committee  on  Mining 
Construction,  The  Economic  Committee  for  the  Utilization  of 
Combustibles  and  The  Social  Committee  of  the  Mines.  Each 
member  of  the  National  Coal  Council  must  belong  to  a  com- 
mittee. The  cost  of  the  administration  of  the  National  Coal 
Council  and  of  its  committees  is  borne  by  the  National  Col- 
liers Associations. 

Each  of  these  organs  has  its  own  special  powers. 

The  National  Coal  Council  directs  the  economy  of  com- 
bustibles, in  which  is  included  importation  and  exportation, 
according  to  the  principles  of  collective  economy  under  the 
supervision  of  the  Reich.  It  must  approve  the  charters  ac- 
cording to  which  the  Colliers  Associations  and  the  National 
Coal  Association  are  organized.  The  National  Coal  Council 
may  decree  general  policies  for  the  administration  of  com- 
bustibles, in  particular  for  the  abolition  of  unproductive  enter- 
prises and  for  the  protection  of  consumers.  It  sees  to  it  that 
the  National  Coal  Association  and  the  technical  committees 
of  the  Coal  Council  work  according  to  the  same  principles 
and  in  a  coherent  system.  It  may  demand  information  from 
any  of  the  organs  that  participate  in  the  fuel  industry;  and 
the  authorities  and  committees  are  obliged  to  give  it  any 
assistance  it  demands.  The  technical  committee  collect  all 
important  data  based  on  practice  and  experience,  study  all 
matters  that  enter  within  their  domain  and  prepare  decisions 
for  the  National  Coal  Council. 

The  National  Coal  Association  controls  the  application  of 
the  general  policies  and  decisions  decreed  by  the  National 
Coal  Council  and  regulates  the  details  of  the  execution  of  these 
decrees.  It  must  approve  the  general  conditions  of  the  coal 
deliveries  of  the  Colliers  Association.    It  establishes  and  pub- 


284  THE  GERMAN  CONSTITUTION 

lishcs  the  selling  prices  of  fuel,  taking  into  account  proposals 
made  by  unions  and  the  interests  of  the  consumers.  On  this 
point  it  must  insure  the  same  treatment  for  the  consumers' 
societies  as  for  the  wholesalers,  and  see  to  it  that  each  con- 
sumer, who  takes  at  least  a  full  carload  of  coal  at  the  mine 
or  at  the  point  of  delivery,  shall  obtain  fuel  under  predeter- 
mined conditions  for  cash  payment.  Finally,  the  National 
Coal  Association  has  authority  in  questions  of  import  and 
export. 

The  Colliers  Associations  supervise  the  application  of  the 
decrees  issued  by  the  National  Coal  Council  and  by  the  Na- 
tional Coal  Association,  and,  within  the  framework  of  these 
decrees,  regulate  the  production,  utilization  and  consumption 
on  the  part  of  their  members.  They,  themselves,  sell  the  fuel 
which  should  be  put  at  their  disposal  by  their  members,  on 
the  account  of  the  latter.  The  powers  of  the  Association  of 
Coal-gas  Manufacturers  are  similar. 

The  mining  companies  may  raise  claims  and  protests 
against  the  regulations  of  the  Associations  of  which  they  are 
members,  appealing  to  the  National  Coal  Association  and 
beyond  that  to  the  National  Coal  Council. 

If  any  measure  on  the  part  of  the  National  Coal  Council, 
the  National  Coal  Association,  or  of  the  Colliers  Associa- 
tions violates  any  vested  right,  the  individual  or  the  associa- 
tion injured  is  entitled  to  suitable  indemnity.  This  indem- 
nity may  be  sued  for  before  ordinary  tribunals. 

The  powers  of  the  Reich,  the  States,  and  the  municipalities 
are  fixed  by  the  decree  of  August,  1919,  as  follows: 

The  Reich,  through  the  intermediacy  of  the  Minister  of 
Public  Economy,  exercises  general  control  over  the  fuel 
economy.  The  Minister  may  in  particular  lower  the  price  of 
coal  fixed  by  the  National  Coal  Association.  He  may  also 
organize  a  representation  of  fuel  consumers,  a  representation 
with  authority  to  fix  the  retail  price  of  coal.  The  cost  in- 
curred by  the  Reich  in  the  execution  of  the  law  on  the  regu- 


REGULATION  OF  THE  COAL  INDUSTRY    285 

lation  of  coal,  up  to  a  minimum  of  200,000  marks  per  year, 
must  be  borne  by  the  National  Coal  Association. 

The  States  represented  by  the  Committee  on  Commerce  and 
Industry  in  the  Reichsrat  are  authorized  to  participate  in  the 
deliberations  of  the  National  Coal  Council  and  its  committees, 
but  only  with  consultative  powers.  Fiscal  authorities  are 
authorized  to  demand  information  of  the  National  Coal  Coun- 
cil of  the  Reich  and  of  its  committees  as  well  as  of  the  Na- 
tional Coal  Associations  and  of  the  Colliers  Associations. 

Municipalities  of  at  least  10,000  inhabitants  and  groups 
and  Unions  of  Municipalities,  after  having  heard  the  claims 
of  dealers  and  consumers,  and  guided  by  the  wholesale  price 
of  coal  fixed  by  the  National  Coal  Association,  are  themselves 
empowered  to  fix  the  retail  price  within  their  territories. 

IL — The  regulation  above  described  was  far  from  giving 
complete  satisfaction.  It  has  been  attacked  both  by  the  con- 
sumers and  the  socialists.  The  latter  criticize  it  as  not  hav- 
ing gone  far  enough  along  the  road  of  nationalization.  The 
former,  on  the  other  hand,  complain  that  prices  are  fixed  by 
an  Assembly  in  which  coal  owners  form  a  very  great  majority 
(The  National  Coal  Association) ,  and  that  the  other  interests 
are  not  able  to  make  themselves  sufficiently  heard.  The  re- 
sult of  this  system  is  that  the  coal  producers  always  come  to 
agreement  to  the  detriment  of  the  consumers  and  constantly 
increase  the  price  of  coal. 

It  must  be  conceded  to  the  socialists  that  in  the  system 
established  by  the  law  of  March  23,  1919,  the  principles  of 
collective  economy  are  applied  in  the  most  parsimonious  man- 
ner possible.  The  only  Council  in  which  there  is  parity  be- 
tween employers  and  workers  is  the  National  Coal  Council, 
but  the  rôle  of  this  Council  is  reduced  to  a  minimum.  The 
real  directors  and  administrators  of  the  coal  industry  are  the 
Colliers  Associations  and  the  National  Coal  Association. 
The  National  Coal  Council  has  hardly  any  effective  power. 


286  THE  GERMAN  CONSTITUTION 

As  for  the  Cabinet,  the  right  of  the  Minister  of  Public 
Economy  to  oppose  his  veto  to  measures  taken  by  the  National 
Coal  Association  and  in  particular  to  lower  by  law  the  prices 
fixed  by  the  latter,  is  considered  by  the  Socialists  entirely 
insufiicient  in  view  of  the  close  co-operation  of  the  coal  mine 
owners  and  the  dealers  in  league  against  him. 

In  May,  1920,  a  bill  was  elaborated  by  the  Cabinet.  It 
provided  for  the  abolition  of  the  National  Coal  Association 
and  for  the  transfer  of  its  powers  to  the  National  Coal  Coun- 
cils; in  addition  the  influence  of  the  consumers  was  to  be 
considerably  increased  within  the  National  Coal  Council. 
But  the  Constituent  Assembly  adjourned  before  this  project 
could  be  examined  by  them. 

Meanwhile  a  change  was  effected.  It  was  agreed  at  the 
end  of  May,  1920,  that  decisions  of  the  National  Coal  Asso- 
ciation would  thereafter  not  be  operative  unless  they  were 
made  in  agreement  with  a  "Great  Commission"  of  the  National 
Coal  Council.  If  agreement  is  not  arrived  at  the  matter  must 
be  brought  before  the  National  Coal  Council  itself  which 
thereupon  decides,  its  decision  becoming  binding  upon  the 
Association. 

III. — But  this  reform  did  not  sufiBce,  and  the  question  of  a 
complete  transformation  of  the  regulation  of  the  coal  industry 
was  submitted  to  a  searching  examination  by  the  Committee 
on  Socialization.  One  thing  was  unanimously  agreed  upon — 
the  existing  régime  could  not  continue.  The  Provisional 
Economic  Council,  in  its  meeting  on  July  24,  the  Cabinet 
of  the  Reich  in  the  meeting  of  the  Reichstag  on  August  5,  and 
the  Committee  on  Socialization  declared  that  the  coal  indus- 
try must  thereafter  be  completely  subjected  to  the  principles 
of  collective  economy;  that  the  wage-earners  and  salaried 
employés  in  this  industry  must  be  included  in  the  number  of 
responsible  directors  of  the  industry;  and  that  the  profits 


REGULATION  OF  THE  COAL  INDUSTRY    287 

obtained  from  the  exploitation  of  the  mines  by  private  capital 
must  be  considerably  decreased. 

As  for  the  practical  means  of  realizing  these  recommenda- 
tions the  Committee  on  Socialization  was  not  able  to  come 
to  an  agreement  and  submitted  two  different  proposals. 

The  first,  that  of  Lederer,  signed  by  ten  out  of  twenty-one 
members,  demanded  immediate  expropriation  and  nationaliza- 
tion of  all  the  mines.  The  owners  of  the  mines  would  receive 
an  indemnity  in  the  form  of  bonds  bearing  a  fixed  interest, 
and  the  ownership  of  these  mines  would  be  transferred  to  an 
autonomous  body,  called  "The  German  Coal  Corporation." 
This  corporation  is  to  be  governed  by  the  National  Coal  Coun- 
cil, which  appoints  a  "directorate"  to  administer  affairs.  The 
right  to  appoint  industrial  heads,  as  well  as  the  responsibility 
for  the  technical  exploitation,  passes  to  the  National  Coal 
Council  and  to  the  Directorate.  Bonuses  for  production  are 
to  be  given  to  directors,  salaried  employés  and  workers. 

The  authors  of  this  proposition  insist  on  the  fact  that  they 
are  not  instituting  state  socialism  for  mines  with  all  its  at- 
tendant fiscal  and  bureaucratic  dangers;  and  to  emphasize 
what  it  is  they  are  aiming  at,  they  propose  that  the  mines 
now  owned  by  the  Reich  and  by  the  States  be  taken  away 
from  them  and  transferred  to  the  German  Commonwealth 
of  Coal. 

Prices  will  be  fixed  by  the  Reich,  to  whose  budgets  will  be 
accounted  the  profits  of  the  exploitation — and  undoubtedly 
the  losses. 

The  second  proposition,  that  of  Rathenau  and  signed  by 
eleven  members  out  of  twenty-one,  does  not  go  as  far  along 
the  road  of  nationalization.  The  present  owners  of  mines, 
according  to  this  plan,  provisionally  retain  their  property, 
but  their  rights  therein  are  strikingly  reduced.  The  distribu- 
tion and  the  sale  of  products  cease  to  be  guaranteed  by  the 
National  Coal  Association — which  is,  in  fact,  done  away 
with — and  are  given  over  to  the  National  Coal  Council  and  to 


288  THE  GERMAN  CONSTITUTION 

a  Directorate,  four  out  of  five  of  whose  members  are  elected 
by  the  Council;  the  fifth,  the  President,  is  appointed  by  the 
Minister  of  Public  Economy. 

The  principal  innovation  consists  in  this.  Whereas  for- 
merly the  sale  of  coal  was  made  on  the  basis  of  the  individual 
exploitations,  according  to  this  project  every  mine  transfers 
to  the  National  Coal  Council  its  whole  output,  and  the  net 
price  is  averaged  according  to  the  books.  The  National 
Council,  therefore,  has  a  monopoly  on  the  wholesale  trade 
and  it  fixes  the  selling  prices.  In  addition  to  the  net  cost 
the  Council  credits  to  the  mine  (1)  the  cost  of  delivery  and 
the  interest  and  amortization  of  bonds  of  the  enterprises;  (2) 
the  interest  and  amortization  of  new  investments;  (3)  the 
normal  fixed  interest  on  the  operating  capital  employed  in  the 
exploitations;  (4)  bonuses,  fixed  according  to  a  schedule,  for 
the  increase  of  output  of  each  exploitation;  or  deductions  in 
case  of  decrease  of  output. 

The  National  Council  may  demand  the  inauguration  of  new 
projects,  or  exploitations  may  propose  improvements  with  the 
approval  of  the  Council,  provided  that  either  the  Council  or 
the  entrepreneur  furnishes  the  necessary  funds.  Finally,  in 
order  to  retain  the  free  play  of  private  initiative,  an  entrepre- 
neur may,  even  in  spite  of  the  National  Council,  make  invest- 
ment but  at  his  own  risk  and  peril. 

By  these  provisions  the  entrepreneur  loses  all  interest  in 
the  increase  of  the  price  of  coal,  for  commerce  in  it  and  com- 
mercial profits  are  denied  to  him.  Also  the  fixing  of  high  net 
prices  does  not  serve  him  in  any  way,  since  his  books  are 
supervised  by  the  properly  empowered  auditors  of  the  Na- 
tional Council.  The  only  way  left  him  to  make  big  profits  is 
to  improve  his  exploitation  in  its  economic  and  social  as- 
spects.  The  interest  or  the  profit  which  has  hitherto  ruled 
economy  is  retained  in  form,  but  it  can  no  longer  work 
except  in  the  common  interest.  The  situation  of  the  manager 
will  depend  as  to-day  on  an  objective  economic  success. 


CONCLUSION  289 


The  Cabinet  of  the  Reich  announced  its  intention  of  soon 
submitting  a  project  of  law  which  will  adopt  in  outline  the 
Rathenau  proposition.  Already  the  mine  owners  are  dis- 
cussing in  the  press  the  question  of  the  "maturity"  of  the 
mines  and  the  mode  of  calculating  the  cost  of  production. 
But  above  private  interest  there  is  a  collective  interest  and  the 
question  will  come  up  whether  the  system  proposed  by  the 
Committee  on  Socialization  and  the  Cabinet  does  not  incur  the 
risk  of  becoming  more  troublesome  than  profitable  to  the 
community  itself. 

CONCLUSION 

We  have  analyzed  in  the  preceding  pages  the  principal  pro- 
visions of  the  German  Constitution.  There  are  in  it  a  great 
number  of  other  provisions,  which  had  to  be  omitted  from  this 
analysis  deliberately,  either  because  they  also  occur  in  all 
the  other  Constitutions  of  the  world,  such  as  the  principle 
stated  by  Article  102,  that  judges  are  independent — provisions 
which  do  not  at  all  serve  in  characterizing  the  work  of 
Weimar;  or,  on  the  other  hand,  because  they  were  dictated  ex- 
clusively by  the  necessity  of  solving  problems  created  by 
the  particular  circumstances  in  the  midst  of  which  the  Reich 
found  itself;  such  as  the  provisions  of  Article  88  and  those 
following,  dealing  with  the  post,  railroads,  and  navigable 
waterways.  These  provisions  present  only  a  slight  interest 
from  the  general  constitutional  point  of  view. 

In  its  final  draft  the  Constitution  of  1919  bears  throughout 
the  stamp  of  compromises,  which  had  to  be  effected  between 
the  parties  represented  in  the  Assembly,  on  practically  every 
problem  attacked.  On  nearly  every  question  which  the  Con- 
stituent Assembly  had  to  solve,  bargains  were  negotiated 
between  the  conflicting  interests  and  theories  of  the  parties 
opposed.  If  one  takes  these  articles  of  the  Constitution  one 
after  another,  one  can  draw  up  the  balance  sheet  of  every 
party,  and  note  the  points  on  which  it  has  won  its  cause"  and 


290  THE  GERMAN  CONSTITUTION 

those  on  which  it  had  to  compromise.  The  Social  Democrats 
wanted  to  substitute  for  the  federal  Empire  a  unitary  State; 
whereas  the  Centre,  whose  co-operation  was  needed  for  the 
Social  Democrats  to  remain  in  power,  defended  the  federalist 
idea.  The  final  result  constitutes  a  marked  victory  for  the 
Social  Democrats.  But  on  the  question  of  the  relation  of 
Church  and  State,  the  Centre  obtained  a  solution  that  is  much 
nearer  their  desires  than  those  of  the  Social  Democrats.  Some- 
times problems  of  a  non-constitutional  nature  were  mixed  into 
negotiations  on  the  Constitution.  It  is  known,  for  example, 
that  the  Social  Democrats  secured  the  signature  of  the  Centre 
to  the  Treaty  of  Versailles  only  in  exchange  for  Social  Demo- 
cratic consent  to  the  compromise  clauses  on  education. 

Nevertheless  the  product  of  these  negotiations  and  these 
transactions  constitutes  a  work  whose  essential  characteristics 
are  clearly  enough  indicated,  and  whose  bold  outline  seems  to 
respond  to  the  demands  which  all  constitutions  of  this  kind 
make. 

From  the  point  of  view  of  legal  technique  the  Constitution 
of  Weimar  is,  on  the  whole,  well  made.  Conscientiously, 
scientifically,  the  men  who  drew  it  up  studied  foreign 
Constitutions,  subjected  them  to  the  most  stringent  criticism, 
tested  them  by  the  particular  exigencies  of  the  Reich  and  by 
the  special  character  of  its  people.  Here  they  imitated,  there 
they  initiated.  Naturally,  they  were  not  wholly  able  to 
detach  themselves  from  the  judgments,  preferences  and  preju- 
dices that  prevail  in  their  country.  Perhaps  from  the  strictly 
German  point  of  view  it  is  better  that  it  should  be  so.  The 
work  is  strongly  marked  with  their  traits.  It  is  logical  and 
fine-spun,  audacious,  complicated  and  sometimes  obscure, 
painstakingly  conceived  and  solidly  constructed. 

But  whatever  technical  merit  a  legal  document  may  pre- 
sent, it  is  worth  little  unless  it  accommodates  itself  to  the 
realities  for  which  it  is  created,  unless,  too,  it  is  strong  enough 
to  resist  the  thrusts  directed  against  it  and  to  master  them. 


CONCLUSION  291 


Has  the  Constitution  of  Weimar  resistance  enough  to  with- 
stand all  the  inevitable  assaults  which  will  be  aimed  at  it, 
and  can  it  guarantee  to  the  German  people  a  well-ordered 
public  life  and  a  stable  government? 

We  know  the  bases  on  which  it  is  constructed;  politically — 
unitarism,  parliamentary  democracy,  the  republic;  economi- 
cally— the  participation  of  the  working  class  in  the  manage- 
ment of  industry,  evolution  toward  the  nationalization  of  the 
industries  most  important  in  the  national  life.  The  political 
institutions,  under  more  or  less  different  forms,  have  been 
tested  by  other  peoples,  who  have  not  complained  of  them. 
Will  these  institutions,  adapted  as  they  have  been,  succeed 
equally  for  the  German  people?  The  economic  institutions 
are  new.    What  will  be  their  worth? 

The  question  is  serious;  for  in  this  edifice  so  logically  con- 
structed all  parts  are  mutually  interdependent,  and  the  whole 
will  not  endure  unless  the  parts  are  solid.  The  downfall  of 
any  of  them  will  drag  down  the  others.  Political  institutions 
will  not  fimction  unless  economic  provisions  assure  industry 
and  commerce  sufficient  prosperity.  But  economic  institu- 
tions will  be  swept  away  if  the  government  is  overwhelmed 
and  ceases  to  fulfil  its  mission. 

The  Constitution  begins  with  making  the  Reich  a  state  as 
unitary  as  possible  without  completely  suppressing  every  trace 
of  the  federal  régime.  But  there  are  strong  centrifugal  ten- 
dencies. In  Prussia  there  are  several  provinces  that  demand 
to  be  formed  into  distinct  states.  Throughout  the  Reich  there 
are  several  states  that  demand  the  return  to  a  purely  federal 
régime,  if  not  actually  the  complete  separation  from  the  Ger- 
man Reich.  Will  these  tendencies  be  strong  enough  to  bring 
about  a  relaxation  of  the  unitary  bond,  if  not  actually  the 
disintegration  of  the  Reich?  We  have  already  pointed  out 
the  difference,  for  example,  separating  Catholic,  peasant  and 
conservative  Bavaria  from  Protestant,  industrial  and  socialist 


292  THE  GERMAN  CONSTITUTION 

Prussia.  The  States  were  able  to  endure  without  much  diflB- 
culty  the  hegemony  of  a  victorious,  powerful,  prosperous 
Prussia,  a  hegemony  by  which  they  profited.  But  the  same 
States  resent  the  thought  that  a  Prussia,  which  they  hold  re- 
sponsible for  the  defeat  and  which  they  now  see  much  weak- 
ened, should  want  to  keep  them  still  under  its  yoke  and  to 
attempt,  under  the  pretext  of  unity,  to  absorb  the  Reich. 
They  feel  this  all  the  more  strongly  since  the  future  is  dark. 
Prussia  has  been  dangerously  stricken  and  it  may  appear 
more  advantageous  not  to  tie  up  too  intimately  their  own  inter- 
ests with  those  of  such  a  state. 

Once  more  Prussia  holds  the  fate  of  Germany  in  its  hands. 
If,  renouncing  the  attitude  which  it  has  maintained  since 
the  Revolution,  Prussia  permits  a  transformation  of  some  of  its 
provinces  into  states,  or  if  it  accords  them  an  autonomy  so 
great  that  they  will  be  in  effect  assimilated  into  states,  then 
the  federalist  or  separatist  tendencies  will  probably  lose  much 
of  their  strength,  and  the  unitarism  desired  by  the  Constitu- 
tion will  be  able  to  maintain  itself  and  even  to  develop.  But 
if  Prussia,  relying  on  its  strength  and  prestige,  diminished 
though  they  be,  insists  on  keeping  the  other  German  states, 
willing  or  not,  in  a  Reich  dominated  by  it,  then  it  may  be 
that  the  federalist  or  separatist  tendencies  will  prevail. 

The  political  institutions  of  Germany  are  as  strongly  im- 
pregnated with  the  democratic  idea  as  possible.  The  ma- 
jority is  sovereign.  But  there  are  minorities,  to  the  right  and 
to  the  left,  that  aspire  to  dictatorship.  It  seems  little  likely 
that  another  attempt  like  that  of  Kapp  and  Liittwitz  will 
succeed  any  better  than  the  last  attempt — at  least  unless 
a  sudden  and  complete  change  in  the  political  orientation  of 
the  people  takes  place.  On  the  other  side,  the  Independents, 
for  whom  even  in  Berlin  a  cowp  d'état  may  be  perhaps  easy 
enough,  know  that  they  would  have  against  them  the  great 
majority  of  the  German  people,  and  their  leaders  openly 
declare  that  their  hour  has  not  yet  come.     If  in  the  domain 


CONCLUSION  293 


of  democratic  doctrine  a  change  seems  likely  to  come,  it  is 
probable  that  it  will  appear  in  the  form  of  a  right  expressly 
accorded  to  economic  associations  or,  in  a  still  more  gen- 
eral manner,  to  producers,  to  exercise  a  special  and  direct 
influence  on  the  government.  If  the  Provisional  Economic 
Council  succeeds,  it  is  possible  that  Germany  will  broaden 
the  experiment  and  attempt  a  true  Economic  Parliament. 

Parliamentary  government  has  been  accepted  but  it  is  mis- 
trusted. There  have  also  been  introduced  a  whole  series  of 
measures  such  as  the  referendum,  initiative,  the  nomination 
and  the  impeachment  of  the  President  by  the  people,  which 
are  not  only  logical  applications  of  the  democratic  principle, 
but  which  are  also  assurances  against  any  possible  misdeeds 
of  parliamentarism.  This  is  a  splendid  proof  of  trust  in 
democracy.    It  is  for  the  future  to  say  whether  it  is  justified. 

As  a  matter  of  fact  the  referendum  and  initiative  await 
the  law  which  is  to  organize  them.  What  will  these  insti- 
tutions produce  in  a  country  as  vast  as  Germany?  It  is  easy 
to  see  that  they  will  strikingly  increase  the  burden  of  gov- 
ernmental machinery,  and  one  asks  oneself  whether  they  will 
not  incur  the  risk  of  completely  impeding  its  functioning.  For 
the  success  of  these  institutions,  we  must  suppose  a  suffi- 
ciently firm  political  education  and  intelligence,  a  public  that 
knows  its  wishes  and  how  to  make  them  prevail,  a  Parliament 
and  a  Cabinet  skilled  in  recognizing  the  wishes  of  the  nation 
and  ready  to  submit  to  them.  Because  of  the  mistrust  of 
parliamentarism,  it  has  been  decided  that  the  President  shall 
be  elected  directly  by  the  people.  He  is  endowed  with  power 
by  the  nation  and  placed  near  to  the  Reichstag  in  order  to  con- 
trol it.  But  may  he  not  become  too  strong,  and  is  there  not  a 
danger  that  he  will  abuse  his  powers  to  the  great  injury  of 
liberty  and  democracy  itself?  The  present  President  has  been 
elected  by  the  National  Assembly.  Considerable  as  are  the 
powers  which  the  Constitution  gives  him,  he  is  actually  one 
of  the  least  powerful  chiefs  of  state  in  the  world.    Will  mat- 


294  THE  GERMAN  CONSTITUTION 

ters  be  different  when  he  is  elected  by  the  whole  people? 
Will  he  be  strong  enough,  or  too  strong? 

This  democracy  which  does  not  fear  the  plebiscite,  has  ex- 
pressly excluded  the  monarchical  form  for  the  Reich  and  for 
the  States.  There  are,  nevertheless,  here  and  there,  particu- 
larly in  Bavaria,  monarchical  plots.  Will  the  Constitution 
have  here,  too,  enough  force  to  command  obedience?  It 
does  not  seem  for  the  moment  that  a  monarchical  restoration, 
no  matter  of  what  dynasty  its  pretender,  would  have  any 
serious  chance  of  succeeding.  For,  until  some  new  state  of 
affairs,  the  working  class,  which  would  permit  a  dictatorship 
exercised  by  itself,  will  probably  oppose  every  attempt  at  a 
return  to  the  abolished  personal  régime. 

The  Economic  Constitution  departs  much  more  from  old 
customs  than  the  political  Constitution. 

The  idea  of  the  Councils  is  probably  the  only  really  new 
idea  that  has  appeared  in  the  public  law  of  modern  states 
since  the  war.  German  law  has  given  this  idea  solemn  con- 
secration and  has  embodied  it  in  the  Constitution.  But  up 
to  now  it  has  given  it  only  the  most  restricted  application. 
The  Factory  Workers  Councils  have  hardly  begun  to  func- 
tion, and  the  working  class  has  not  yet  any  clear  notion  of 
the  manner  in  which  it  will  use  the  power  given  by  the  law  to 
these  new  organisms. 

The  doctrine  of  the  Councils  leads  naturally  to  nationaliza- 
tion. For  to  confide  the  administration  of  the  whole  of  an 
industry  to  Economic  Councils,  in  which  the  workers  are 
represented  by  the  side  of  the  employers  and  consumers,  is  to 
make  a  direct  application  of  the  Mitbestimmungsrecht.  But 
other  considerations  are  also  tending  to  give  this  system  a 
place  of  increasing  importance.  "The  free  play  of  economic 
forces"  is  no  longer  being  upheld.  It  is  afiBrmed  everywhere 
that  classic  liberalism  has  had  its  day,  and  that  in  order  to 
improve  the  economic  situation  so  extremely  unfavourable 


CONCLUSION  295 


in  all  the  modern  states,  it  is  not  enough  that  things  be  allowed 
freely  to  take  their  course.  It  is  now  thought  that  "let  alone" 
leads  to  bankruptcy.  One  no  longer  believes  in  the  former 
principles  that  held  as  absolute  the  right  to  private  property, 
the  right  of  work,  liberty  of  commerce,  and  freedom  of  con- 
tract. To-day  these  rights  are  held  to  be  limited  by  the 
general  good  and  must  be  exercised  by  the  individual  in  the 
interest  of  all. 

As  the  question  of  principle  seems  to  be  settled  the  problem 
becomes  almost  exclusively  a  practical  one.  A  certain 
number  of  industries  have  become  more  or  less  nationalized 
or  even  socialized  and  will  become  still  more  so,  their  num- 
ber also  probably  growing.  The  discussion  now  seems  to  be 
only  on  the  modes  of  application,  on  the  degree  of  "maturity" 
necessary;  on  whether  this  or  that  industry  is  or  is  not  ripe; 
on  the  mode  of  calculating  the  cost  of  exploitation;  on  bonuses 
for  output,  etc.,  etc. 

Like  the  idea  of  the  Councils,  this  doctrine  of  national- 
ization seems  to  gain  more  and  more.  What  will  come  of  it 
for  Germany  and  for  the  States  that  will  follow  this  road? 
Are  not  these  new  formulas  the  ephemeral  result  of  the  up- 
heaval due  to  the  war?  Or  will  they,  improved  and  tested  by 
practice,  be  definitely  installed  in  the  economic  organization 
of  all  modern  peoples?  To  the  countries  that  adopt  them, 
will  they  bring  ruin  or  economic  prosperity  and  social  peace? 
On  these  matters,  one  can  only  write  interrogation  marks. 
In  any  event,  however,  it  is  important  to  follow  the  German 
experiment  with  the  greatest  possible  interest. 


GLOSSARY 

German  Translation 

Reich       Commonwealth 

Reichs- of  the  Commonwealth,  national 

Reichsarbeiterrat        National  Workers'  Council 

Reichsgericht National  Judicial  Court 

ReichsKj^nzler        National  Chancellor 

Reichsminister National  Minister 

Reichsministerium,  pi.,  -lEN    .     .  National  Department 

Reichsprasident President   of   the   Commonwealth, 

National  President 

Reichsrat National  Council 

Reichsregierung National  Cabinet 

Reichstag National  Assembly 

Reichsverwaltungsgericht  .     .     .  National  Administrative  Court 
Reichswirtschaftsrat      ....   National  Economic  Council 

Land State    (an    integral    part    of    the 

Commonwealth) 

Landes- of  the  State,  State 

Landesregierung State  Cabinet 

Landtag State  Assembly 

Wahlprufungsgericht     ....  Electoral  Commission 

Staat country,  state   (one  of  the  family 

of  nations)  ;  referring  to  Ger- 
many, it  designates  the  Com- 
monwealth and  separate  States 
as  a  single  political  entity. 

Staatsgerichtshof Supreme  Judicial  Court 

STA.ATUCH political 

freistaatlich republican 


296 


APPENDIX 

THE  CONSTITUTION 

OF  THE 

GERMAN  COMMONWEALTH 

PREAMBLE 

The  German  People,  united  in  all  their  branches,  and  inspired  by  the 
determination  to  renew  and  strengthen  their  Commonwealth  in  liberty 
and  justice,  to  preserve  peace  both  at  home  and  abroad,  and  to  foster 
social  progress,  have  adopted  the  following  Constitution. 

PART    ONE 
Structure  and  Functions  of  the  Commonwealth 

SECTION  I 
COMMONWEALTH  AND  STATES 

ARTICLE    1 

The  German  Commonwealth  is  a  republic. 
Political  authority  is  derived  from  the  People. 

ARTICLE  2 

The  territory  of  the  Commonwealth  consists  of  the  territories  of  the 
German  States.  Other  territories  may  be  incorporated  into  the  Com- 
monwealth by  national  law,  if  their  inhabitants,  exercising  the  right  of 
self-determination,  so  desire. 

ARTICLE  3 

The  national  colours  are  black,  red  and  gold.  The  merchant  flag  is 
black,  white  and  red,  with  the  national  colours  in  the  upper  inside  comer. 

297 


298  THE  GERMAN  CONSTITUTION 


ARTICX.E  4 

The  generally  recognized  principles  of  the  law  of  nations  are  accepted 
as  an  integral  part  of  the  law  of  the  German  Commonwealth. 

ARTICLE  5 

Political  authority  is  exercised  in  national  affairs  by  the  National 
Government  in  accordance  with  the  Constitution  of  the  Commonwealth, 
and  in  State  affairs  by  the  State  Governments  in  accordance  with  the 
State  constitutions. 

ARTICLE  6 

The  Commonwealth  has  exclusive  jurisdiction  over: 

1.  Foreign  relations; 

2.  Colonial  affairs; 

3.  Citizenship,  freedom  of  travel  and  residence,  immigration  and 

emigration,  and  extradition; 

4.  Organization  for  national  defence; 

5.  Coinage  ; 

6.  Customs,  including  the  consolidation  of  customs  and  trade  dis- 

tricts and  the  free  interchange  of  goods; 

7.  Posts  and  telegraphs,  including  telephones. 

ARTICLE  7 

The  Commonwesdth  has  jurisdiction  over: 

1.  Civil  law; 

2.  Criminal  law; 

3.  Judicial  procedure,  including  penal  administration,  and  official 

co-operation  between  the  administrative  authorities; 

4.  Passports  and  the  supervision  of  aliens; 

5.  Poor  relief  and  vagrancy; 

6.  The  press,  associations  and  public  meetings; 

7.  Problems    of   population;    protection    of    maternity,   infancy, 

childhood  and  adolescence; 

8.  Public  health,  veterinary  practice,  protection  of  plants  from 

disease  and  pests; 

9.  The  rights  of  labour,  social  insurance,  the  protection  of  wage- 

earners  and  other  employés,  and  employment  bureaus; 

10.  The    establishment    of    national    organizations    for    vocational 

representation; 

11.  Provision  for  war- veterans  and  their  surviving  dependents; 


APPENDIX  299 


12.  The  law  of  expropriation; 

13.  The   socialization    of    natural   resources    and    business    enter- 

prises, as  well  as  the  production,  fabrication,  distribution, 
and  price-fixing  of  economic  goods  for  the  use  of  the  com- 
munity ; 

14.  Trade,  weights  and  measures,  the  issue  of  paper  money,  bank- 

ing, and  stock  and  produce  exchanges; 

15.  Commerce  in  foodstuffs  and  in  other  necessaries  of  daily  life, 

and  in  luxuries; 

16.  Industry  and  mining; 

17.  Insurance  ; 

18.  Ocean  navigation,  and  deep-sea  and  coast  fisheries; 

19.  Railroads,  internal  navigation,  communication  by  power-driven 

vehicles  on  land,  on  sea,  and  in  the  air;  the  construction 
of  highways,  in  so  far  as  pertains  to  general  intercom- 
munication and  the  national  defence; 

20.  Theatres  and  cinematographs. 

ARTICLE  8 

The  Commonwealth  also  has  jurisdiction  over  taxation  and  other 
sources  of  income,  in  so  far  as  they  may  be  claimed  in  whole  or  in  part 
for  its  purposes.  If  the  Commonwealth  claims  any  source  of  revenue 
which  formerly  belonged  to  the  States,  it  must  have  consideration  for 
the  financial  requirements  of  the  States. 

AETICLE  9 

Whenever  it  is  necessary  to  establish  uniform  rules,  the  Common- 
wealth has  jurisdiction  over: 

1.  The  promotion  of  social  welfare; 

2.  The  protection  of  public  order  and  safety. 

ARTICLE   10 

The  Commonwealth  may  prescribe  by  law  fundamental  principles 
concerning  : 

1.  The  rights  and  duties  of  religious  associations; 

2.  Education,  including  higher  education  and  libraries  for  scien- 

tific use; 

3.  The  law  of  officers  of  all  public  bodies; 

4.  The  land  law,  the  distribution  of  land,  settlements  and  home- 

steads, restrictions  on   landed  property,  housing,  and  the 
distribution  of  population; 
6.    Disposal  of  the  dead. 


300  THE  GERMAN  CONSTITUTION 


ARnCLB  11 

The  Commonwealth  may  prescribe  by  law  fundamental  principles 
concerning  the  validity  and  mode  of  collection  of  State  taxes,  in  order 
to  prevent: 

1.  Injurj'  to  the  revenues  or  to  the  trade  relations  of  the  Com- 

monwealth ; 

2.  Double  taxation; 

3.  The  imposition  of  excessive  burdens,  or  burdens  in  restraint  of 

trade  on  the  use  of  the  means  and  agencies  of  public  com- 
munication; 

4.  Tax  discriminations  against  the  products  of  other  States  in 

favour  of  domestic  products  in  interstate  and  local  com- 
merce; or 

5.  Export  bounties; 

or  in  order  to  protect  important  social  interests. 

ARTICLE  12 

So  long  and  in  so  far  as  the  Commonwealth  does  not  exercise  its 
jurisdiction,  such  jurisdiction  remains  with  the  States.  This  does  not 
apply  in  cases  where  the  Commonwealth  possesses  exclusive  jurisdiction. 

The  National  Cabinet  may  object  to  State  laws  relating  to  the  sub- 
jects of  Article  7,  Number  13,  whenever  the  general  welfare  of  the 
Commonwealth  is  affected  thereby. 

ARTICLE  13 

The  laws  of  the  Commonwealth  are  supreme  over  the  laws  of  the 

States  which  conflict  with  them. 

If  doubt  arises,  or  difference  of  opinion,  whether  State  legislation  is 
in  harmony  with  the  law  of  the  Commonwealth,  the  proper  authorities 
of  the  Commonwealth  or  the  central  authorities  of  the  States,  in  accord- 
ance with  more  specific  provisions  of  a  national  law,  may  have  recourse 
to  the  decision  of  a  supreme  judicial  court  of  the  Commonwealth. 

ARTICLE  14 

The  laws  of  the  Commonwealth  will  be  executed  by  the  State  author- 
ities, unless  otherwise  provided  by  national  law, 

ARTICLE  15 

The  National  Cabinet  supervises  the  conduct  of  affairs  over  which 
the  Commonwealth  has  jurisdiction. 


APPENDIX  301 


In  so  far  as  the  laws  of  the  Commonwealth  are  to  be  carried  into 
effect  by  the  State  authorities,  the  National  Cabinet  may  issue  general 
instructions.  It  has  the  power  to  send  commissioners  to  the  central 
authorities  of  the  States,  and,  with  their  consent,  to  the  subordinate 
State  authorities,  in  order  to  supervise  the  execution  of  national  laws. 

It  is  the  duty  of  the  State  Cabinets,  at  the  request  of  the  National 
Cabinet,  to  correct  any  defects  in  the  execution  of  the  national  laws. 
In  case  of  dispute,  either  the  National  Cabinet  or  that  of  the  State 
may  have  recourse  to  the  decision  of  the  Supreme  Judicial  Court,  unless 
another  court  is  prescribed  by  national  law. 

ARTICLE   16 

The  officers  directly  charged  with  the  administration  of  national 
affairs  in  any  State  shall,  as  a  rule,  be  citizens  of  that  State.  The 
officers,  employés  and  workmen  of  the  national  administration  shall, 
if  they  so  desire,  be  employed  in  the  districts  where  they  reside  as  far 
as  is  possible  and  not  inconsistent  with  their  training  and  with  the  re- 
quirements of  the  service. 

ARTICLE  17 

Every  State  must  have  a  republican  constitution.  The  representa- 
tives of  the  People  must  be  elected  by  the  universal,  equal,  direct  and 
secret  suffrage  of  all  German  citizens,  both  men  and  women,  according 
to  the  principles  of  proportional  representation.  The  State  Cabinet 
shall  require  the  confidence  of  the  representatives  of  the  People. 

The  principles  in  accordance  with  which  the  representatives  of  the 
People  are  chosen  apply  also  to  municipal  elections;  but  by  State  law 
a  residence  qualification  not  exceeding  one  year  of  residence  in  the 
municipality  may  be  imposed  in  such  elections. 

ARTICLE  18 

The  division  of  the  Commonwealth  into  States  shall  serve  the  high- 
est economic  and  cultural  interests  of  the  People  after  most  thorough 
consideration  of  the  wishes  of  the  population  affected.  State  boun- 
daries may  be  altered  and  new  States  may  be  created  within  the  Com- 
monwealth by  the  process  of  constitutional  amendment. 

With  the  consent  of  the  States  directly  affected,  it  requires  only  an 
ordinary  law  of  the  Commonwealth. 

An  ordinary  law  of  the  Commonwealth  will  also  suffice,  if  one  of  the 
States  affected  does  not  consent,  provided  that  the  ciiangc  of  boun- 
daries or  the  creation  of  a  new  State  is  desired  by  tiic  population 
concerned  and  is  also  required  by  a  preponderant  national  interest. 


302  THE  GERMAN  CONSTITUTION 

The  wishes  of  the  population  shall  be  ascertained  by  a  referendum. 
The  National  Cabinet  orders  a  referendum  on  demand  of  one-third  of 
the  inhabitants  qualified  to  vote  for  the  National  Assembly  in  the 
territory  to  be  cut  off. 

Three-fifths  of  the  votes  cast,  but  at  least  a  majority  of  the  qualified 
voters,  are  required  for  the  alteration  of  a  boundary  or  the  creation 
of  a  new  State.  Even  if  a  separation  of  only  a  part  of  a  Prussian 
administrative  district,  a  Bavarian  circle,  or,  in  other  States,  a  corre- 
sponding administrative  district,  is  involved,  the  wishes  of  the  popula- 
tion of  the  whole  district  must  be  ascertained.  If  there  is  no  physical 
contact  between  the  territory  to  be  cut  off  and  the  rest  of  the  district, 
the  wishes  of  the  population  of  the  district  to  be  cut  off  may  be 
pronounced  conclusive  by  a  special  law  of  the  Commonwealth. 

After  the  consent  of  the  population  has  been  ascertained  the  National 
Cabinet  shall  introduce  inio  the  National  Assembly  a  bill  suitable  for 
enactment. 

If  any  controversy  arises  over  the  division  of  property  in  connection 
with  such  a  union  or  separation,  it  will  be  determined  upon  complaint 
of  either  party  by  the  Supreme  Judicial  Court  of  the  German  Common- 
wealth. 

ARTICLE   19 

If  controversies  concerning  the  Constitution  arise  within  a  State  in 
which  there  is  no  court  competent  to  dispose  of  them,  or  if  controversies 
of  a  public  nature  arise  between  different  States  or  between  a  State 
and  the  Commonwealth,  they  will  be  determined  upon  complaint  of 
one  of  the  parties  by  the  Supreme  Judicial  Court  of  the  German 
Commonwealth,  unless  another  judicial  court  of  the  Commonwealth  is 
competent. 

The  President  of  the  Commonwealth  executes  judgments  of  the 
Supreme  Judicial  Court. 

SECTION  II 
THE  NATIONAL  ASSEMBLY 

ARTICLE  20 

The  National  Assembly  is  composed  of  the  delegates  of  the  German 
People. 

ARTICLE  21 

The  delegates  are  representatives  of  the  whole  People.  They  are 
subject  only  to  their  own  consciences  and  are  not  bound  by  any 
instructions. 


APPENDIX  303 


ARTICLE  22 

The  delegates  are  elected  by  universal,  equal,  direct  and  secret 
suffrage  by  all  men  and  women  over  twenty  years  of  age,  in  accord- 
ance with  the  principles  of  proportional  representation.  The  day  for 
elections  must  be  a  Sunday  or  a  public  holiday. 

The  details  will  be  regulated  by  the  national  election  law. 

ARTICLB  23 

The  National  Assembly  is  elected  for  four  years.  New  elections 
must  take  place  at  the  latest  on  the  sixtieth  day  after  its  term 
comes  to  an  end. 

The  National  Assembly  convenes  at  the  latest  on  the  thirtieth  day 
after  the  election. 

ARTICLE]  24 

The  National  Assembly  meets  each  year  on  the  first  Wednesday  in 
November  at  the  seat  of  the  National  Government.  The  President  of 
the  National  Assembly  must  call  it  earlier  if  the  President  of  the 
Commonwealth,  or  at  least  one-third  of  the  members  of  the  National 
Assembly,  demand  it. 

The  National  Assembly  determines  the  close  of  its  session  and  the 
day  of  re-assembling. 

ARTICLE  25 

The  President  of  the  Commonwealth  may  dissolve  the  National 
Assembly,  but  only  once  for  the  same  cause. 

The  new  election  occurs  at  the  latest  on  the  sixtieth  day  after  such 
dissolution. 

ARTICLE  26 

The  National  Assembly  chooses  its  President,  Vice-President  and 
its  Secretaries.    It  regulates  its  own  procedure. 

ARTICLE  27 

During  the  interval  between  sessions,  or  while  elections  are  taking 
place,  the  President  and  Vice-President  of  the  preceding  session  con- 
duct its  affairs. 

ARTICLE  28 

The  President  administers  the  regulations  and  policing  of  the  Na- 
tional Assembly  building.    The  management  of  the  building  is  subject 


304  THE  GERMAN  CONSTITUTION 

to  his  direction;  he  controls  its  receipts  and  expenses  in  accordance 
with  the  provisions  of  the  budget,  and  represents  the  Commonwealth 
in  all  legal  affairs  and  in  litigation  arising  during  his  administration. 

ARTICLE  29 

The  proceedings  of  the  National  Assembly  are  public.  At  the  request 
of  fifty  members  the  public  may  be  excluded  by  a  two-thirds  vote. 

ARTICLE  30 

True  and  accurate  reports  of  the  proceedings  in  public  sittings  of 
the  National  Assembly,  of  a  State  Assembly,  or  of  their  committees, 
are  absolutely  privileged. 

ARTICLE  31 

An  Electoral  Commission  to  decide  disputed  elections  will  be  organ- 
ized in  connection  with  the  National  Assembly.  It  will  also  decide 
whether  a  delegate  has  forfeited  his  seat. 

The  Electoral  Commission  consists  of  members  of  the  National 
Assembly,  chosen  by  the  latter  for  the  life  of  the  Assembly,  and  of 
members  of  the  National  Administrative  Court,  to  be  appointed  by  the 
President  of  the  Commonwealth  on  the  nomination  of  the  presidency 
of  this  court. 

This  Electoral  Commission  pronounces  judgment  after  public  hear- 
ings through  a  quorum  of  three  members  of  the  National  Assembly  and 
two  judicial  members. 

Proceedings  apart  from  the  hearings  before  the  Electoral  Commission 
will  be  conducted  by  a  National  Commissioner  appointed  by  the 
President  of  the  Commonwealth.  In  other  respects  the  procedure  will 
be  regulated  by  the  Electoral  Commission. 

ARTICLE  32 

The  National  Assembly  acts  by  majority  vote  unless  otherwise 
provided  in  the  Constitution.  For  the  conduct  of  elections  by  the 
National  Assembly  it  may,  in  its  rules  of  procedure,  make  exceptions. 

The  quorum  to  do  business  will  be  regulated  by  the  rules  of  pro- 
cedure. 

ARTICLE  33 

The  National  Assembly  and  its  committees  may  require  the  presence 
of  the  National  Chancellor  and  of  any  National  Minister. 


APPENDIX  305 


The  National  Chancellor,  the  National  Ministers,  and  Commis- 
sioners designated  by  them,  have  the  right  to  be  present  at  the 
sittings  of  the  National  Assembly  and  of  its  committees.  The  States 
are  entitled  to  send  their  plenipotentiaries  to  these  sittings  to  submit 
the  views  of  their  Cabinets  on  matters  under  consideration. 

At  their  request  the  representatives  of  the  Cabinets  shall  be  heard 
during  the  deliberations,  and  the  representatives  of  the  National 
Cabinet  shall  be  heard  even  outside  the  regular  order  of  business. 

They  are  subject  to  the  authority  of  the  presiding  oflScer  in  matters 
of  order. 

ARTICLE  34 

The  National  Assembly  has  the  right,  and,  on  proposal  of  one-fifth 
of  its  members,  the  duty  to  appoint  committees  of  investigation. 
These  committees,  in  public  sittings,  inquire  into  the  evidence  which 
they,  or  the  proponents,  consider  necessary.  The  public  may  be  ex- 
cluded by  a  two-thirds  vote  of  the  committee  of  investigation.  The 
rules  of  procedure  regulate  the  proceedings  of  the  committee  and 
determine  the  number  of  its  members. 

The  judicial  and  administrative  authorities  are  required  to  comply 
with  requests  by  these  committees  for  information,  and  the  record  of 
the  authorities  shall  on  request  be  submitted  to  them. 

The  provisions  of  the  code  of  criminal  procedure  apply  as  far  as 
is  suitable  to  the  inquiries  of  these  committees  and  of  the  authorities 
assisting  them,  but  the  secrecy  of  letter  and  other  post,  telegraph,  and 
telephone  services  will  remain  inviolate. 

ARTICLE  35 

The  National  Assembly  appoints  a  Standing  Committee  on  foreign 
affairs  which  may  also  act  outside  of  the  sittings  of  the  National 
Assembly  and  after  its  expiration  or  dissolution  until  a  new  National 
Assembly  convenes.  Its  sittings  are  not  public,  unless  the  committee 
by  a  two-thirds  vote  otherwise  provides. 

The  National  Assembly  also  appoints  a  Standing  Committee  for  the 
protection  of  the  rights  of  the  representatives  of  the  People  against 
the  National  Cabinet  during  a  recess  and  after  the  expiration  of  the 
term  for  which  it  was  elected. 

These  committees  have  the  rights  of  committees  of  investigation. 

ARTICLE  36 

No  member  of  the  National  Assembly  or  of  a  State  Assembly 
shall  at  any  time  whatsoever  be  subject  to  any  judicial  or  disciplinary 


306  THE  GERMAN  CONSTITUTION 


prosecution  or  be  teld  responsible  outside  of  the  House  to  which  he 
belongs  on  account  of  his  vote  or  his  opinions  uttered  in  the  perform- 
ance of  his  duty. 

ARTICLE  37 

No  member  of  the  National  Assembly  or  of  a  State  Assembly 
shall  during  the  session,  without  the  consent  of  the  House  to  which 
he  belongs,  be  subject  to  investigation  or  arrest  on  account  of  any 
punishable  offence,  unless  he  is  caught  in  the  act,  or  apprehended  not 
later  than  the  following  day. 

Similar  consent  is  required  in  the  case  of  any  other  restraint  of 
personal  liberty  which  interferes  with  the  performance  by  a  delegate 
of  his  duties. 

Any  criminal  proceeding  against  a  member  of  the  National  Assembly 
or  of  a  State  Assembly,  and  any  arrest  or  other  restraint  of  his  personal 
liberty  shall,  at  the  demand  of  the  House  to  which  he  belongs,  be 
suspended  for  the  duration  of  the  session. 

ARTICLE  38 

The  members  of  the  National  Assembly  and  the  State  Assemblies 
are  entitled  to  refuse  to  give  evidence  concerning  persons  who  have 
given  them  information  in  their  official  capacity,  or  to  whom  they 
have  given  information  in  the  performance  of  their  official  duties,  or 
concerning  the  information  itself.  In  regard  also  to  the  seizure  of 
papers  their  position  is  the  same  as  that  of  persons  who  have  by  law 
the  right  to  refuse  to  give  evidence. 

A  search  or  seizure  may  be  proceeded  with  in  the  precincts  of  tho 
National  Assembly  or  of  a  State  Assembly  only  with  the  consent  of 
its  Present. 

ARTICLE  39 

Civil  officers  and  members  of  the  armed  forces  need  no  leave  to 
perform  their  duties  as  members  of  the  National  Assembly  or  of  a 
State  Assembly. 

If  they  become  candidates  for  election  to  these  bodies,  the  necessary 
leave  shall  be  grsinted  them  to  prepare  for  their  election. 

ARTICLE  40 

The  members  of  the  National  Assembly  shall  have  the  right  of  free 
transportation  over  all  German  railroads,  and  also  compensation  as 
fixed  by  national  law. 


APPENDIX  307 


SECTION  III 

THE  NATIONAL  PRESIDENT  AND  THE 
NATIONAL  CABINET 

ARTICLE  41 

The  National  President  is  chosen  by  the  whole  German  People. 
Every  German  who  has  completed  his  thirty-fifth  year  is  eligible 
for  election. 
The  details  will  be  regulated  by  a  national  law. 

ARTICLE  42 

The  National  President,  on  assuming  his  oflBce,  takes  before  the 
National  Assembly  the  following  oath: 

/  swear  to  devote  all  my  energy  to  the  welfare  of  the  German 
People,  to  increase  their  prosperity,  to  protect  them  from  injury,  to 
preserve  the  Constitution  and  the  laws  of  the  Commonwealth,  to 
perform  my  duties  conscientiously,  and  to  deal  justly  with  all. 

The  addition  of  a  religious  affirmation  is  permitted. 

ARTICLE  43 

The  term  of  the  National  President  is  seven  years.  He  is  eligible 
for  re-election. 

The  President  may  be  removed  before  the  end  of  his  term  by  vote 
of  the  People  on  proposal  of  the  National  Assembly.  The  act  of  the 
National  Assembly  in  such  case  requires  a  two-thirds  majority  vote. 
Upon  such  action  the  President  is  suspended  from  further  exercise  of 
his  office.  A  refusal  by  the  People  to  remove  the  President  has  the 
effect  of  a  new  election  and  entails  the  dissolution  of  the  National 
Assembly. 

The  National  President  shall  not  be  subject  to  criminal  prosecution 
without  the  consent  of  the  National  Assembly. 

ARTICLE  44 

The  National  President  may  not  at  the  same  time  be  a  member  of 
the  National  Assembly. 

ARTICLE  45 

The  National  President  represents  the  Commonwealth  in  matters 
of  international   law.     He   concludes  in  the   name   of   tiie   Common- 


308  THE  GERMAN  CONSTITUTION 

wealth,  alliances  and  other  treaties  with  foreign  powers.  He  accredits 
and  receives  ambassadors. 

War  is  declared  and  peace  concluded  by  national  law. 

Alliances  and  treaties  with  foreign  States,  relating  to  subjects  within 
the  jurisdiction  of  the  Commonwealth,  require  the  consent  of  the 
National  Assembly. 

ARTICLE  46 

The  President  appoints  and  dismisses  the  civil  and  military  officers 
of  the  Commonwealth  if  not  otherwise  provided  by  law.  He  may 
delegate  this  right  of  appointment  or  dismissal  to  other  authorities. 

ARTICLE  47 

The  National  President  has  supreme  command  over  all  the  armed 
forces  of  the  Commonwealth. 

ARTICLE  48 

If  any  State  does  not  perform  the  duties  imposed  upon  it  by  the 
Constitution  or  by  national  laws,  the  National  President  may  hold  it 
to  the  performance  thereof  by  force  of  arms. 

If  public  safety  and  order  in  the  German  Commonwealth  is  mate- 
rially disturbed  or  endangered,  the  National  President  may  take  the 
necessary  measures  to  restore  public  safety  and  order,  and,  if  necessary, 
to  intervene  by  force  of  arms.  To  this  end  he  may  temporarily 
suspend,  in  whole  or  in  part,  the  fundamental  rights  established  in 
Articles  114,  115,  117,  118,  123,  124  and  153. 

The  National  President  must  immediately  inform  the  National 
Assembly  of  all  measures  adopted  by  authority  of  Paragraphs  1  or  2 
of  this  Article.  These  measures  shall  be  revoked  at  the  demand  of  the 
National   Assembly. 

If  there  is  danger  from  delay,  the  State  Cabinet  may  for  its  own 
territory  take  provisional  measures  as  specified  in  Paragraph  2.  These 
measures  shall  be  revoked  at  the  demand  of  the  National  President 
or  of  the  National  Assembly. 

The  details  will  be  regulated  by  a  national  law. 

ARTICLE  49 

The    National    President    exercises    the    right    of    pardon    for    the 
Commonwealth. 
National  amnesties  require  a  national  law. 

ARTICLE  50 

All  orders  and  directions  of  the  National  President,  including  those 
concerning  the  armed  forces,  require  for  their  validity  the   counter- 


APPENDIX  309 


signature  of  the  National  Chancellor  or  of  the  appropriate  National 
Minister.     By  the   countersignature  responsibility   is  assumed. 

ABTICLE  51 

The  National  President  is  represented  temporarily  in  case  of  disa- 
bility by  the  National  Chancellor.  If  such  disability  seems  likely  to 
continue  for  any  considerable  period,  he  shall  be  represented  as  may 
be  determined  by  a  national  law. 

The  same  procedure  shall  be  followed  in  case  of  a  premature  vacancy 
of  the  Presidency  until  the  completion  of  the  new  election, 

ARTICLE  52 

The  National  Cabinet  consists  of  the  National  Chancellor  and  the 
National  Ministers. 

ARTICLE  53 

The  National  Chancellor  and,  on  his  proposal,  the  National  Ministers 
are  appointed  and  dismissed  by  the  National  President. 

ARTICLE  54 

The  National  Chancellor  and  the  National  Ministers  require  for 
the  administration  of  Iheir  offices  the  confidence  of  the  National 
Assembly.  Each  of  them  must  resign  if  the  National  Assembly  by 
formal  resolution  withdraws  its  confidence. 

ARTICLE  55 

The  National  Chancellor  presides  over  the  National  Cabinet  and 
conducts  its  affairs  in  accordance  with  rules  of  procedure,  which  will 
be  framed  by  the  National  Cabinet  and  approved  by  the  National 
President. 

ARTICLE  56 

The  National  Chancellor  determines  the  general  course  of  policy 
and  assumes  responsibility  therefor  to  the  National  Assembly.  In 
accordance  with  this  general  policy  each  National  Minister  conducts 
independently  the  particular  affairs  intrusted  to  him  and  is  held 
individually  responsible  to  the  National  Assembly. 

ARTICLE  57 
The  National  Ministers  shall  submit  to  the  National  Cabinet  for 
consideration  and  decision  all  drafts  of  bills  and  other  matters  for 
which  this  procedure  is  prescribed  by  the  Constitution  or  by  law,  as 
well  as  differences  of  opinion  over  questions  which  concern  the  depart- 
ments of  several  National  Ministers. 


310  THE  GERMAN  CONSTITUTION 


ARTICLE  58 

The  National  Cabinet  will  make  its  decisions  by  majority  vote. 
In  case  of  a  tie  the  vote  of  the  presiding  officer  will  be  decisive. 

ARTICLE  59 

The  National  Assembly  is  empowered  to  impeach  the  National 
President,  the  National  Chancellor,  and  the  National  Ministers  before 
the  Supreme  Judicial  Court  of  the  German  Commonwealth  for  any 
wrongful  violation  of  the  Constitution  or  laws  of  the  Commonwealth. 
The  proposal  to  bring  an  impeachment  must  be  signed  by  at  least  one 
hundred  members  of  the  National  Assembly  and  requires  the  approval 
of  the  majority  prescribed  for  amendments  to  the  Constitution.  The 
details  will  be  regulated  by  the  national  law  relating  to  the  Supreme 
Judicial  Court. 


SECTION  IV 
THE  NATIONAL  COUNCIL 

ARTICLE  60 

A  National  Council  will  be  organized  to  represent  the  German 
States  in  national  legislation  and  administration. 

ARTICLE  61 

In  the  National  Council  each  State  has  at  least  one  vote.  In  the 
case  of  the  larger  States  one  vote  is  accorded  for  every  million  inhabi- 
tants. Any  excess  equal  at  least  to  the  population  of  the  smallest 
State  is  reckoned  as  equivalent  to  a  full  million.  No  State  shall  be 
accredited  with  more  than  two-fifths  of  all  votes. 

[German- Austria  after  its  union  with  the  German  Commonwealth 
will  receive  the  right  of  participation  in  the  National  Council  with 
the  number  of  votes  corresponding  to  its  population.  Until  that  time 
the  representatives  of  German-Austria  have  a  deliberate  voice.]  * 

'  Stricken  out  at  the  demand  of  the  Supreme  Council  of  the  Allied  and  Asso- 
ciated Powers.  The  Supreme  Council  addressed  the  following  demand  to 
Germany  on  September  2,  1919  : 

"The  Allied  and  Associated  Powers  have  examined  the  German  Constitu- 
tion of  August  11,  1919.  They  observe  that  the  provisions  of  the  second 
paragraph  of:  Article  61  constitute  a  formal  violation  of  Article  80  of  the 
Treaty  of  Peace  signed  at  Versailles  on  June  28,  1919.  This  violation  is 
twofold  : 

"1.  Article  61  by  stipulating  for  the  admission  of  Austria  to  the  Reichsrat 
assimilates  that  Republic  to  the  German  States  composing  the  German  Em- 


APPENDIX  311 


The  number  of  votes  is  determined  anew  by  the  National  Council 
after  every  general  census. 

ARTICLE  62 

In  committees  formed  by  the  National  Council  from  its  own  mem- 
bers no  State  will  have  more  than  one  vote. 

ARTICLE  63 

The  States  will  be  represented  in  the  National  Council  by  members 
of  their  Cabinets.  Half  of  the  Prussian  votes,  however,  will  be  at 
the  disposal  of  the  Prussian  provincial  administrations  in  accordance 
with  a  State  law. 

The  States  have  the  right  to  send  as  many  representatives  to  the 
National  Council  as  they  have  votes. 

pire — an  assimilation  which  is  incompatible  with  respect  to  the  independence 
of  Austria. 

"2.  By  admitting  and  providing  for  the  participation  of  Austria  in  the 
Council  of  the  Empire  Article  61  creates  a  political  tie  and  a  common 
political  action  between  Germany  and  Austria  in  absolute  opposition  to  the 
independence  of  the  latter. 

"In  consequence  the  Allied  and  Associated  Powers,  after  reminding  the 
German  Government  that  Article  178  of  the  German  Constitution  declares 
that  'the  provisions  of  the  Treaty  of  Versailles  can  not  be  affected  by  the 
Constitution,'  Invite  the  German  Government  to  take  the  necessary  measures 
to  efface  without  delay  this  violation  by  declaring  Article  61,  Paragraph  2, 
to  be  null  and  void. 

"Without  prejudice  to  subsequent  measures  in  case  of  refusal,  and  in 
virtue  of  the  Treaty  of  Peace  (and  in  particular  Article  29),  the  Allied  and 
Associated  Powers  inform  the  German  Government  that  this  violation  of  its 
engagements  on  an  essential  point  will  compel  them,  if  satisfaction  is  not 
given  to  their  just  demand  within  15  days  from  the  date  of  the  present 
note,  immediately  to  order  the  extension  of  their  occupation  on  the  right 
bank  of  the  Rhine." 

Article  29  of  the  Treaty  of  Peace  refers  to  Map  No.  1  which  shows  the 
boundaries  of  Germany  and  provides  that  the  text  of  Articles  27  and  28  will 
be  final  as  to  those  boundaries.    Article  80  reads  as  follows  : 

"Germany  acknowledges  and  will  respect  strictly  the  independence  of 
Austria,  within  the  frontiers  which  may  l)o  fixed  in  a  Treaty  between  that 
State  and  the  Principal  Allied  and  Associated  I'ower.s  ;  she  agrees  that  this 
independence  shall  be  inalienable,  except  with  the  consent  of  the  Council  of 
the  League  of  Nations." 

A  diplomatic  act  was  «Igned  at  Paris  on  September  22,  1919,  by  the  repre- 
sentatives of  the  Principal  Allied  and  Associated  Powers  and  Germany  In  the 
following  terms  : 

"The  undersigned,  duly  authorized  and  acting  In  the  name  of  the  German 
Government,  recognizes  and  declares  that  all  tlie  provisions  of  the  German 
Constitution  of  August  11,  1919,  whicli  are  in  contradiction  of  the  terms  of 
the  Treaty  of  Peace  signed  at  Versailles  on  June  2.S,  1919,  are  null. 

"The  German  Government  di'clares  and  recognizes  that  In  consequence 
Paragraph  2  of  Article  (il  of  the  said  Constitution  is  null,  and  that  In  par- 
ticular the  admission  of  Austrian  representatives  to  tin-  K<'ielistag  could 
only  take  place  in  the  event  of  the  consent  of  the  (^)uncll  of  tlic  l.i'Mgui'  of 
Nations  to  a  eorrosjionding  modification   of  Austria's  internatioiml  situation. 

"The  present  declaration  shall  be  ai)i)rove(l  by  the  competent  (icrrnan 
legislative  authority,  within  the  fortnight  following  tlic  entry  Into  force  of 
the  Peace  Treaty. 

"Given  at  Versailles,  September  22,  1919,  in  the  presence  of  the  under- 
signed representatives  of  the  Principal  Allied  and  Associated  Powers." 


312  THE  GERMAN  CONSTITUTION 

ARTICLE  64 

The  National  Cabinet  must  summon  the  National  Council  on  de- 
mand by  one-third  of  its  members. 

ARTICLE  65 

The  chairmanship  of  the  National  Council  and  of  its  committees 
is  filled  by  a  member  of  the  National  Cabinet.  The  members  of  the 
National  Cabinet  have  the  right  and  on  request  [of  the  National 
Council]  the  duty  to  take  part  in  the  proceedings  of  the  National 
Council  and  its  committees.  They  must  at  their  request  be  heard  at 
any  time  during  its  deliberations. 

ARTICLE  66 

The  National  Cabinet,  as  well  as  every  member  of  the  National 
Council,  is  entitled  to  make  proposals  in  the  National  Council. 

The  National  Council  regulates  its  order  of  business  through  rules 
of  procedure. 

The  plenary  sittings  of  the  National  Council  are  public.  In  accord- 
ance with  the  rules  of  procedure  the  public  may  be  excluded  during 
the  discussion  of  particular  subjects. 

Decisions  are  taken  by  a  majority  of  those  present. 

ARTICLE  67 

The  National  Council  shall  be  kept  informed  by  the  National 
Departments  of  the  conduct  of  national  business.  At  deliberations  on 
important  subjects  the  appropriate  committees  of  the  National  Council 
shall  be  summoned  by  the  National  Departments. 

SECTION  V 
NATIONAL  LEGISLATION 

ARTICLE  68 

Bills  are  introduced  by  the  National  Cabinet  or  by  members  of  the 
National  Assembly. 
National  laws  are  enacted  by  the  National  Assembly. 

ARTICLE  69 

The  introduction  of  bills  by  the  National  Cabinet  requires  the 
concurrence  of  the  National  Council.  If  an  agreement  between  the 
National  Cabinet  and  the  National  Council  is  not  reached,  the  National 


APPENDIX  313 


Cabinet  may  nevertheless  introduce  the  bill,  but  must  state  the  dissent 
of  the  National  Council. 

If  the  National  Council  resolves  upon  a  bill  to  which  the  National 
Cabinet  does  not  assent,  the  latter  must  introduce  the  bill  in  the 
National  Assembly  together  with  a  statement  of  its  attitude. 

ARTICLE  70 

The  National  President  shall  compile  the  laws  which  have  been 
constitutionallj^  enacted  and  within  one  month  publish  them  in  the 
National  Bulletin  of  Laws. 

ARTICLE  71 

National  laws  go  into  effect,  unless  otherwise  specified,  on  the 
fourteenth  day  following  the  date  of  their  publication  in  the  National 
Bulletin  of  Laws  at  the  national  capital. 

ARTICLE  72 

The  promulgation  of  a  national  law  may  be  deferred  for  two  months, 
if  one-third  of  the  National  Assembly  so  demands.  Laws  which  the 
National  Assembly  and  the  National  Council  declare  to  be  urgent 
may  be  promulgated  by  the  National  President  regardless  of  this 
demand. 

ARTICLE  73 

A  law  enacted  by  the  National  Assembly  shall  be  referred  to  the 
People  before  its  promulgation,  if  the  National  President  so  orders 
within  a  month. 

A  law  whose  promulgation  is  deferred  at  the  demand  of  at  least 
one-third  of  the  National  Assembly  shall  be  submitted  to  the  People, 
if  one-twentieth  of  the  qualified  voters  so  petition. 

A  popular  vote  shall  further  be  resorted  to  on  a  measure  initiated  by 
the  People  if  one-tenth  of  the  qualified  voters  so  petition.  A  fully 
elaborated  bill  must  accompany  such  petition.  The  National  Cabinet 
shall  lay  the  bill  together  with  a  statement  of  its  attitude  before  the 
National  Assembly.  The  popular  vote  does  not  take  place  if  the 
desired  bill  is  enacted  without  amendment  by  the  National  Assembly. 

A  popular  vote  may  be  taken  on  the  budget,  tax  laws,  and  laws 
relating  to  the  classification  and  payment  of  public  officers  only  by 
authority  of  the  National  President. 

The  procedure  in  connection  with  the  popular  referendum  and 
initiative  will  be  regulated  by  national   law. 


314  THE  GERMAN  CONSTITUTION 


ARTICLE  74 

The  National  Council  has  the  ri^t  to  object  to  lawa  passed  by 
the  National  Assembly. 

The  objection  must  be  filed  with  the  National  Cabinet  within  two 
weeks  after  the  final  vote  in  the  National  Assembly  and  must  be  sup- 
ported by  reasons  within  two  more  weeks  at  the  latest. 

In  case  of  objection,  the  law  is  returned  to  the  National  Assembly 
for  reconsideration.  If  an  agreement  between  the  National  Assembly 
and  the  National  Council  is  not  reached,  the  National  President  may 
within  three  months  refer  the  subject  of  the  dispute  to  the  People. 
If  the  President  makes  no  use  of  this  right,  the  law  does  not  go  into 
effect.  If  the  National  Assembly  disapproves  by  a  two-thirds  majority 
the  objection  of  the  National  Council,  the  President  shall  promulgate 
the  law  in  the  form  enacted  by  the  National  Assembly  within  three 
months  or  refer  it  to  the  People. 

ARTICLE  75 

An  act  of  the  National  Assembly  may  be  annulled  by  a  popular 
vote,  only  if  a  majority  of  those  qualified  take  part  in  the  vote. 

ARTICLE  76 

The  Constitution  may  be  amended  by  process  of  legislation.  But 
acts  of  the  National  Assembly  relating  to  the  amendment  of  the 
Constitution  are  effective  only  if  two-thirds  of  the  legal  membership 
are  present,  and  at  least  two-thirds  of  those  present  give  their  assent. 
Acts  of  the  National  Council  relating  to  the  amendment  of  the  Con- 
stitution also  require  a  two-thirds  majority  of  all  the  votes  cast.  If 
an  amendment  to  the  Constitution  is  to  be  adopted  by  the  People 
by  popular  initiative,  the  assent  of  a  majority  of  the  qualified  voters 
is  required. 

If  the  National  Assembly  adopts  an  amendment  to  the  Constitution 
against  the  objection  of  the  National  Council,  the  President  may  not 
promulgate  this  law,  if  the  National  Council  within  two  weeks  demands 
a  popular  vote. 

ARTICLE  77 

The  National  Cabinet  issues  the  general  administrative  regulations 
necessary  for  the  execution  of  the  national  laws  so  far  as  the  laws  do 
not  otherwise  provide.  It  must  secure  the  assent  of  the  National 
Council  if  the  execution  of  the  national  laws  is  assigned  to  the  State 
authorities. 


APPENDIX  315 


SECTION  VI 
THE  NATIONAL  ADMINISTRATION 

AKTICLE  78 

The  conduct  of  relations  with  foreign  countries  is  exclusively  a 
function  of  the  Commonwealth. 

The  States,  in  matters  subject  to  their  jurisdiction,  may  conclude 
treaties  with  foreign  countries;  such  treaties  require  the  assent  of  the 
Commonwealth. 

Agreements  with  foreign  countries  regarding  changes  of  national 
boundaries  will  be  concluded  by  the  Commonwealth  with  the  consent 
of  the  State  concerned.  Changes  of  boundaries  may  be  made  only  by 
authority  of  a  national  law,  except  in  cases  where  a  mere  adjustment 
of  the  boundaries  of  uninhabited  districts  is  in  question. 

To  assure  the  representation  of  interests  arising  from  the  special 
economic  relations  of  individual  States  to  foreign  countries  or  from 
their  proximity  to  foreign  countries,  the  Commonwealth  determines 
the  requisite  arrangements  and  measures  in  agreement  with  the  States 
concerned. 

ARTICLE  79 

The  national  defence  is  a  function  of  the  Commonwealth.  The 
organization  of  the  German  People  for  defence  will  be  uniformly 
regulated  by  a  national  law  with  due  consideration  for  the  peculiarities 
of  the  people  of  the  separate  States. 

ARTICLE  80 

Colonial  policy  is  exclusively  a  function  of  the  Commonwealth. 

ARTICLE  81 

All  German  merchant  ships  constitute  a  unified  merchant  marine. 

ARTICLE  82 

Germany  forms  a  customs  and  trade  area  surrounded  by  a  common 
customs  boundary. 

The  customs  boundary  is  identical  with  the  international  boundary. 
At  the  seacoast  the  shore  of  the  mainland  and  of  the  islands  belonging 
to  the  national  territory  constitutes  the  customs  boundary.  Deviations 
may  be  made  for  the  course  of  the  customs  boundary  at  the  ocean 
and  at  other  bodies  of  water. 


316  THE  GERMAN  CONSTITUTION 

Foreign  territories  or  parts  of  territories  may  be  incosporated  in  the 
customs  area  by  international  treaties  or  agreements. 

Portions  of  territory  may  be  excluded  from  the  customs  area  in 
accordance  with  special  requirements.  In  the  case  of  free  ports  this 
exclusion  may  be  discontinued  only  by  an  amendment  to  the 
Constitution. 

Districts  excluded  from  the  customs  area  may  be  included  within 
a  foreign  customs  area  by  international  treaties  or  agreements. 

All  products  of  nature  or  industry,  as  well  as  works  of  art,  which 
are  subjects  of  free  commerce  within  the  Commonwealth,  may  be 
transported  in  any  direction  across  State  and  municipal  boundaries. 
Exceptions  are  permissible  by  authority  of  national  law, 

ARTICLE  83 

Customs  duties  and  taxes  on  articles  of  consumption  are  adminis- 
tered by  the  national  authorities. 

In  connection  with  national  tax  administration  by  the  national 
authorities,  arrangements  shall  be  provided  which  will  enable  the 
States  to  protect  their  special  agricultural,  commercial,  trade  and 
industrial  interests, 

ARTICLE  84 

The  Commonwealth  has  authority  to  regulate  by  law: 

1.  The  organization  of  the  State  tax  administrations  so  far  as  13 
required  for  the  uniform  and  impartial  execution  of  the  national 
tax  laws; 

2.  The  organization  and  functions  of  the  authorities  charged  with 
the  supervision  of  the  execution  of  the  national  tax  laws; 

3.  The  accounting  with  the  States; 

4.  The  reimbursement  of  the  costs  of  administration  in  connection 
with  the  execution  of  the  national  tax  laws. 

ARTICLE  85 

All  revenues  and  expenditures  of  the  Commonwealth  must  be 
estimated  for  each  fiscal  year  and  entered  in  the  budget. 
The  budget  is  adopted  by  law  before  the  beginning  of  the  fiscal  year. 
Appropriations  are  ordinarily  granted  for  one  year;  in  special  cases 
they  may  be  granted  for  a  longer  period.  Otherwise,  provisions  ex- 
tending beyond  the  fiscal  year  or  not  relating  to  the  national  revenues 
and  expenditures  or  their  administration,  are  inadmissible  in  the 
national  budget  law. 


APPENDIX  317 


The  National  Assembly  may  not  increase  appropriations  in  the 
budget  bill  or  insert  new  items  without  the  consent  of  the  National 
Council. 

The  consent  of  the  National  Council  may  be  dispensed  with  in 
accordance  with  the  provisions  of  Article  74. 

AKTICLE  86 

In  the  following  fiscal  year  the  National  Minister  of  Finance  will 
submit  to  the  National  Council  and  to  the  National  Assembly  an 
account  concerning  the  disposition  of  all  national  revenue  so  as  to 
discharge  the  responsibility  of  the  National  Cabinet.  The  auditing 
of  this  account  will  be  regulated  by  national  law. 

ARTICLE  87 

Funds  may  be  procured  by  borrowing  only  in  case  of  extraordinary 
need  and  in  general  for  expenditures  for  productive  purposes  only. 
Such  procurement  of  funds  as  well  as  the  assumption  by  the  Common- 
wealth of  any  financial  obligation  is  permissible  only  by  authority  of  a 
national  law. 

ARTICLE  88 

The  postal  and  telegraph  services,  together  with  the  telephone 
service,  are  exclusively  functions  of  the  Commonwealth. 

The  postage  stamps  are  uniform  for  the  whole  Commonwealth. 

The  National  Cabinet,  with  the  consent  of  the  National  Council, 
issues  the  regulations  prescribing  the  conditions  and  charges  for  the 
use  of  the  means  of  communication.  With  the  consent  of  the  National 
Council  it  may  delegate  this  authority  to  the  Postmaster  General. 

The  National  Cabinet,  with  the  consent  of  the  National  Council, 
establishes  an  advisory  council  to  co-operate  in  deliberations  con- 
cerning the  postal,  telegraph  and  telephone  services  and  rates. 

The  Commonwealth  alone  concludes  treaties  relating  to  communi- 
cation with  foreign  countries. 

ARTICLE  89 

It  is  the  duty  of  the  Commonwealth  to  acquire  ownership  of  the 
railroads  which  serve  as  means  of  general  public  communication,  and 
to  operate  them  as  a  single  system  of  transportation. 

The  rights  of  the  States  to  acquire  private  railroads  shall  be 
transferred  to  the  Commonwealth  on  its  demand. 


318  THE  GERMAN  CONSTITUTION 


ARTICLE  90 

With  the  taking  over  of  the  railroads  the  Commonwealth  also 
acquires  the  right  of  expropriation  and  the  sovereign  powers  of  the 
States  pertaining  to  railroad  affairs.  The  Supreme  Judicial  Court 
decides  controversies  relating  to  the  extent  of  these  rights. 

AETICLE  91 

The  National  Cabinet,  with  the  consent  of  the  National  Council, 
issues  the  regulations  governing  the  construction,  operation  and  traffic 
of  railroads.  With  the  consent  of  the  National  Council  it  may  delegate 
this  authority  to  the  appropriate  national  minister. 

ARTICLE  92 

The  national  railroads,  irrespective  of  the  incorporation  of  their 
budget  and  accounts  in  the  general  budget  and  accounts  of  the 
Commonwealth,  shall  be  administered  as  an  independent  economic 
enterprise  which  shall  defray  its  own  expenses,  including  interest  and 
the  amortization  of  the  railroad  debt,  and  accumulate  a  railroad  reserve 
fund.  The  amount  of  the  amortization  and  of  the  reserve  fund,  as  well 
as  the  purpose  to  which  the  reserve  fund  may  be  applied,  shall  be 
regulated  by  special  law. 

ARTICLE  93 

The  National  Cabinet  with  the  consent  of  the  National  Council 
establishes  advisory  councils  for  the  national  railroads  to  co-operate 
in  deliberations  concerning  railroad  service  and  rates. 

ARTICLE  94 

If  the  Commonwealth  takes  over  the  operation  of  railroads  which 
serve  as  means  of  general  public  communication  in  any  district,  addi- 
tional railroads  to  serve  as  means  of  general  public  communication 
within  this  district  may  only  be  built  by  the  Commonwealth  or  with 
its  consent.  If  new  construction  or  the  alteration  of  existing  national 
railroad  systems  encroaches  upon  the  sphere  of  authority  of  the  State 
police,  the  national  railroad  administration,  before  its  decision,  shall 
grant  a  hearing  to  the  State  authorities. 

Where  the  Commonwealth  has  not  yet  taken  over  the  operation  of 
the  railroads,  it  may  lay  out  on  its  own  account  by  virtue  of  national 
law  railroads  deemed  necessary  to  serve  as  means  of  general  public 
communication  or  for  the  national  defence,  even  against  the  opposition 
of  the  States,   whose   territory   they  will    traverse,   without,  however, 


APPENDIX  319 


impairing  the  sovereign  powers  of  the  States,  or  it  may  turn  over  the 
construction  to  another  to  execute,  together  with  a  grant  of  the  right 
of  expropriation  if  necessary. 

Each  railroad  administration  must  consent  to  connection  with  other 
roads  at  the  expense  of  the  latter. 

ABTICLE  95 

Railroads  serving  as  means  of  general  public  communication  which 
are  not  operated  by  the  Commonwealth  are  subject  to  supervision  by 
the  Commonwealth. 

The  railroads  subject  to  national  supervision  shall  be  laid  out  and 
equipped  in  accordance  with  uniform  standards  established  by  the 
Commonwealth.  They  shall  be  maintained  in  safe  operating  condition 
and  developed  according  to  the  requirements  of  traffic.  Facilities  and 
equipment  for  passenger  and  freight  traffic  shall  be  maintained  and 
developed  in  keeping  with  the  demand. 

The  supervision  of  rates  is  designed  to  secure  non-discriminatory 
and  moderate  railroad  charges. 

ARTICLE  96 

All  railroads,  including  those  not  serving  as  means  of  general  public 
communication,  must  comply  with  the  requirements  of  the  Common- 
wealth so  far  as  concerns  the  use  of  the  roads  for  purposes  of  national 
defence. 

ARTICI.E  97 

It  is  the  duty  of  the  Commonwealth  to  acquire  ownership  of  and 
to  operate  all  waterways  serving  as  means  of  general  public  communi- 
cation. 

After  they  have  been  taken  over,  waterways  serving  as  means  of 
general  public  communication  may  be  constructed  or  extended  only 
by  the  Commonwealth  or  with  its  consent. 

In  the  administration,  development,  or  construction  of  such  waterways 
the  requirements  of  agriculture  and  water-supply  shall  bo  protected 
in  agreement  with  the  States.  Their  improvement  shall  al.so  be 
considered. 

Each  waterways  administration  shall  consent  to  connection  with 
other  inland  waterways  at  the  expense  of  the  latter.  The  same  obliga- 
tion exists  for  the  construction  of  a  connection  bctwrnn  inland 
waterways  and  railroads. 

In  taking  over  the  waterways  the  Commonwealth  acquires  the  right 


320  THE  GERMAN  CONSTITUTION 

of  expropriation,  control  of  rates,  and  the  police  power  over  waterways 
and  navigation. 

The  duties  of  the  river  improvement  associations  in  relation  to  the 
development  of  natural  watenvays  in  the  Rhine,  Weser,  and  Elbe 
basins  shall  be  assumed  by  the  Commonwealth. 

ARTICLE  98 

Advisory  national  waterways  councils  will  be  formed  in  accordance 
with  detailed  regulations  issued  by  the  National  Cabinet  with  the 
consent  of  the  National  Council  to  co-operate  in  the  management  of 
the  waterways. 

ABTICLE  99 

Charges  may  be  imposed  on  natural  waterways  only  for  such  works, 
facilities,  and  other  accommodations  as  are  designed  for  the  relief  of 
traffic.  In  the  case  of  state  and  municipal  public  works  they  may  not 
exceed  the  necessary  costs  of  construction  and  maintenance.  The 
construction  and  maintenance  costs  of  works  designed  not  exclusively 
for  the  relief  of  traffic,  but  also  for  serving  other  purposes,  may  be 
defrayed  only  to  a  proportionate  extent  by  navigation  tolls.  Interest 
and  amortization  charges  on  the  invested  capital  are  included  in  the 
costs  of  construction. 

The  provisions  of  the  preceding  paragraph  apply  to  the  charges 
imposed  for  artificial  waterways  and  for  accommodations  in  connection 
therewith  and  in  harbours. 

The  total  costs  of  a  waterway,  a  river  basin,  or  a  system  of  water- 
ways may  be  taken  into  consideration  in  determining  navigation  tolls 
in  the  field  of  inland  water  transportation. 

These  provisions  apply  also  to  the  floating  of  timber  on  navigable 
waterways. 

Only  the  Commonwealth  imposes  on  foreign  ships  and  their  cargoes 
other  or  higher  charges  than  on  German  ships  and  their  cargoes. 

For  the  procurement  of  means  for  the  maintenance  and  development 
of  the  German  system  of  waterways  the  Commonwealth  may  by  law 
call  on  the  shipping  interests  for  contributions  also  in  other  ways 
[than  by  tolls]. 

ARTICLE   100 

To  cover  the  cost  of  maintenance  and  construction  of  inland 
navigation  routes  any  person  or  body  of  persons  who  in  other  ways 
than  through  navigation  derives  profit  from  the  construction  of  dams 
may  also  be  called  upon  by  national  law  for  contributions,  if  several 


APPENDIX  321 


States    are    involved    or    the    Commonwealth    bears    the    costs    of 
construction. 

ABTICLE  101 

It  is  the  duty  of  the  Commonwealth  to  acquire  ownership  of  and 
to  operate  all  aids  to  navigation,  especially  lighthouses,  lightships, 
buoys,  floats  and  beacons.  After  they  are  taken  over,  aids  to  naviga- 
tion may  be  installed  or  extended  only  by  the  Commonwealth  or 
with  its  consent. 

SECTION  VII 
THE  ADMINISTRATION  OF  JUSTICE 

ARTICLE   102 

Judges  are  independent  and  subject  only  to  the  law. 

ARTICLE  103 

Ordinary  jurisdiction  will  be  exercised  by  the  National  Judicial 
Court  and  the  courts  of  the  States. 

ARTICLE   104 

Judges  of  ordinary  jurisdiction  are  appointed  for  life.  They  may 
against  their  wishes  be  permanently  or  temporarily  removed  from 
oflBce,  or  transferred  to  another  position,  or  retired,  only  by  virtue  of  a 
judicial  decision  and  for  the  reasons  and  in  the  forms  provided  by  law. 
The  law  may  fix  an  age  limit  on  reaching  which  judges  may  be  retired. 

Temporary  suspension  from  office  in  accordance  with  law  is  not 
affected  by  this  Article. 

If  there  is  a  re-organization  of  the  courts  or  of  the  judicial  districts, 
the  State  department  of  justice  may  order  involuntary  transfers  to 
another  court  or  removal  from  oflBce,  but  only  with  allowance  of  full 
salary. 

These  provisions  do  not  apply  to  judges  of  commercial  tribunals, 
lay  associates,  and  jurymen. 

ARTICLE   105 

Extraordinary  courts  are  illegal.  No  one  may  be  removed  from  the 
jurisdiction  of  his  lawful  judge.  Provisions  of  law  relating  to  military 
courts  and  courts-martial  are  not  affected  hereby.  Military  courta  of 
honour  arc  abolished. 


322  THE  GERMAN  CONSTITUTION 


ARTICLE  106 

Military  jurisdiction  is  abolished  except  in  time  of  war  and  on  board 
war-vessels.    Details  will  be  regulated  by  national  law. 

ARTICLE  107 

There  shall  be  administrative  courts  both  in  the  Commonwealth 
and  in  the  States,  in  accordance  with  the  laws,  to  protect  the  individual 
against  orders  and  decrees  of  administrative  authorities. 

ARTICLE  108 

In  accordance  with  a  national  law  a  Supreme  Judicial  Court  will  be 
established  for  the  German  Commonwealth. 


PART    TWO 

Fundamental  Rights  and  Duties  of  Germans 

SECTION  I 
THE  INDIVIDUAL 

ARTICLE   109 

All  Germans  are  equal  before  the  law. 

Men  and  women  have  fundamentally  the  same  civil  rights  and 
duties. 

Privileges  or  discriminations  due  to  birth  or  rank  and  recognized 
by  law  are  abolished.  Titles  of  nobility  will  be  regarded  merely  as 
part  of  the  name  and  may  not  be  granted  hereafter. 

Titles  may  be  conferred  only  when  they  designate  an  office  or 
profession;   academic  degrees  are  not  affected  by  this  provision. 

Orders  and  honorary  insignia  may  not  be  conferred  by  the  state. 

No  German  may  accept  a  title  or  order  from  a  foreign  Government. 

ARTICLE   110 

Citizenship  in  the  Commonwealth  and  in  the  States  will  be  acquired 
and  lost  in  accordance  with  the  provisions  of  a  national  law.  Every 
citizen  of  a  State  is  at  the  same  time  a  citizen  of  the  Commonwealth. 

Every  German  has  the  same  rights  and  duties  in  each  State  of  the 
Commonwealth  as  the  citizens  of  that  State. 

ARTICLE   111 

All  Germans  enjoy  the  right  to  travel  and  reside  freely  throughout 
the  whole  Commonwealth.  Every  one  has  the  right  of  sojourn  and 
settlement  in  any  place  within  the  Commonwealth,  the  right  to  acquire 
land  and  to  pursue  any  gainful  occupation.  No  limitations  may  be 
imposed  except  by  authority  of  a  national  law. 

ARTICI^  112 

Every  German  has  the  right  to  emigrate  to  foreign  countricB. 
Emigration  may  be  limited  only  by  national  law. 

323 


324  THE  GERMAN  CONSTITUTION 

All  German  citizens,  both  within  and  without  the  territory  of  the 
Commonwealth,  have  a  right  to  its  protection  with  respect  to  foreign 
countries. 

No  German  may  be  surrendered  to  a  foreign  Government  for 
prosecution  or  punishment. 

ARTICLE  113 

Those  elements  of  the  People  which  speak  a  foreign  language  may 
not  be  interfered  with  by  legislative  or  administrative  action  in  their 
free  and  characteristic  development,  especially  in  the  use  of  their 
mother  tongue  in  the  schools  or  in  matters  of  internal  administration 
and  the  administration  of  justice. 

ARTICLE   114 

Personal  liberty  is  inviolable.  An  interference  with  or  abridgement 
of  personal  liberty  through  official  action  is  permissible  only  by 
authority  of  law. 

Persons,  who  are  deprived  of  their  liberty,  shall  be  informed  at  latest 
on  the  following  day  by  what  authority  and  on  what  grounds  they 
have  been  deprived  of  liberty,  and  they  shall  without  delay  receive  an 
opportunity  to  present  objections  against  such  loss  of  liberty. 

ARTICLE   115 

The  house  of  every  German  is  his  sanctuary  and  is  inviolable. 
Exceptions  are  permissible  only  by  authority  of  law. 

ARTICLE   116 

An  act  can  be  punishable  only  if  the  penalty  was  fixed  by  law 
before  the  act  was  committed. 

ARTICLE    117 

The  secrecy  of  postal,  telegraphic,  and  telephonic  communications 
is  inviolable.     Exceptions  may  be  permitted  only  by  national  law. 

ARTICLE   118 

Every  German  has  a  right  within  the  limits  of  the  general  laws  to 
express  his  opinion  freely  by  word,  in  writing,  in  print,  by  picture,  or 
in  any  other  way.  No  relationship  arising  out  of  his  employment  may 
hinder  him  in  the  exercise  of  this  right,  and  no  one  may  discriminate 
against  him  if  he  makes  use  of  this  right. 

There  is  no  censorship,  although  exceptional  provisions  may  be  made 
by  law  in  the  case  of  moving  pictures.  Legal  measures  are  also 
permissible  for  combating  obscene  and  indecent  literature  as  well  as 
for  the  protection  of  youth  at  public  plays  and  spectacles. 


APPENDIX  325 


SECTION  II 
COMMUNITY  LIFE 

ARTICLE   119 

Marriage,  as  the  foundation  of  family  life  and  of  the  maintenance 
and  increase  of  the  nation,  is  under  the  special  protection  of  the 
Constitution.     It  is  based  on  the  equal  rights  of  both  sexes. 

The  maintenance  of  the  purity,  the  health,  and  the  social  advance- 
ment of  the  family  is  the  task  of  the  state  and  of  the  municipalities. 
Families  with  numerous  children  have  a  claim  to  equalizing  assistance. 

Motherhood  has  a  claim  to  the  protection  and  care  of  the  State. 

ARTICLE  120 

The  physical,  mental,  and  moral  education  of  their  offspring  is  the 
highest  duty  and  the  natural  right  of  parents,  whose  activities  are 
supervised  by  the  political  community. 

ARTICLE  121 

Illegitimate  children  shall  be  provided  by  law  with  the  same  oppor- 
tunities for  their  physical,  mental,  and  moral  development  as  legitimate 
children. 

ARTICLE  122 

Youth  shall  be  protected  against  exploitation  as  well  as  against 
neglect  of  their  moral,  mental,  or  physical  welfare.  The  necessary 
arrangements  shall  be  made  by  state  and  municipality. 

Compulsory  protective  measures  may  be  ordered  only  by  authority 
of  the  law. 

ARTICLE    123 

All  Germans  have  the  right  of  meeting  peaceably  and  unarmed 
without  notice  or  special  permission. 

Previous  notice  may  be  required  by  national  law  for  meetings  in 
the  open,  and  such  meetings  may  be  forbidden  in  case  of  immediate 
danger  to  the  public  safety. 

ARTICLE  124 
All   Germans  have  the   right   to   form   associations  or  societies  for 
purposes  not  contrary  to   the   criminal   law.     This   right  can   not  be 
limited    by    preventive    measures.      The    same    provisions    apply    to 
religious  associations  and  societies. 


326  THE  GERMAN  CONSTITUTION 

Every  association  has  the  right  of  incorporation  in  accordance  with 
the  civil  law.  No  association  may  be  denied  this  right  on  the  ground 
that  it  pursues  a  political,  social-political,  or  religious  object. 

ARTICLE  125 

The  liberty  and  secrecy  of  the  suffrage  are  guaranteed.  Details  will 
be  regulated  by  the  election  laws. 

ARTICLE   126 

Every  German  has  the  right  to  petition  or  to  complain  in  writing 
to  the  appropriate  authorities  or  to  the  representatives  of  the  People. 
This  right  may  be  exercised  by  individuals  as  well  as  by  several 
persons  together. 

ARTICLE  127 
Municipalities  and  unions  of  municipalities  have  the  right  of  self- 
government  within  the  limits  of  the  laws. 

ARTICLE  128 

All  citizens  without  distinction  are  eligible  for  public  office  in 
accordance  with  the  laws  and  according  to  their  ability  and  services. 

All  discriminations  against  women  in  the  civil  service  are  abolished. 

The  principles  of  the  official  relation  shall  be  regulated  by  national 
law. 

ARTICLE   129 

Civil  officers  are  appointed  for  life,  in  so  far  as  is  not  otherwise 
provided  by  law.  Pensions  and  provisions  for  surviving  dependents 
will  be  regulated  by  law.  The  duly  acquired  rights  of  the  civil  officers 
are  inviolable.  Claims  of  civil  officers  based  upon  property  rights 
may  be  established  by  process  of  law. 

Civil  officers  may  be  suspended,  temporarily  or  permanently  retired, 
or  transferred  to  other  positions  at  a  smaller  salary  only  under  the 
legally  prescribed  conditions  and  forms. 

A  process  of  appeal  against  disciplinary  sentence  and  opportunity  for 
reconsideration  shall  be  established.  Reports  of  an  unfavorable  char- 
acter concerning  a  civil  officer  shall  not  be  entered  in  his  official 
record,  until  he  has  had  the  opportunity  to  express  himself.  Civil 
officers  shall  also  be  permitted  to  inspect  their  official  records. 

The  inviolability  of  the  duly  acquired  rights  and  the  benefit  of  legal 
processes  for  the  establishment  of  claims  based  on  property  rights  are 
also  assured  especially  to  regular  soldiere.  In  other  respects  their 
position  is  regulated  by  national  law. 


APPENDIX  327 


ARTICLE   130 

The  civil  oflScers  are  servants  of  the  whole  community,  not  of  a 
part  of  it. 

To  all  civil  officers  freedom  of  political  opinion  and  of  association 
are  assured. 

The  civil  officers  receive  special  representation  in  their  official 
capacity  in  accordance  with  more  precise  provisions  of  national  law. 

ARTICUE  131 

If  a  civil  officer  in  the  exercise  of  the  authority  conferred  upon  him 
by  law  fails  to  perform  his  official  duty  toward  any  third  person,  the 
responsibility  is  assumed  by  the  state  or  public  corporation  in  whose 
service  the  officer  is.  The  right  of  redress  [by  the  state  or  public 
corporation]  against  the  officer  is  reserved.  The  ordinary  process  of 
law  may  not  be  excluded. 

Detailed  regxilations  will  be  made  by  the  appropriate  law-making 
authority. 

ARTICLE  132 

Every  German,  in  accordance  with  the  laws,  has  the  duty  of 
accepting  honorary  offices. 

ARTICLE   133 

All  citizens  are  obliged,  in  accordance  with  the  laws,  to  render 
personal  services  to  the  state  and  the  municipality. 

The  duty  of  military  service  will  be  defined  in  accordance  with  the 
provisions  of  the  national  defence  law.  This  will  determine  also  how 
far  particular  fundamental  rights  shall  be  restricted  in  their  applica- 
tion to  the  members  of  the  armed  forces  in  order  that  the  latter  may 
fulfil  their  duties  and  discipline  may  be  maintained. 

ARTICLE   134 

All  citizens,  without  distinction,  contribute  according  to  their  meana 
to  the  support  of  all  public  burdens,  as  may  be  provided  by  law. 

SECTION  in 
RELIGION  AND  RELIGIOUS  SOCIETIES 

ARTICLE    IS.") 

All  inhabitants  of  the  Commonwealth  enjoy  complete  liberty  of 
belief  and  conscienco.  The  free  exercise  of  religion  i»  iissurrd  by  the 
Constitution  and  in  under  public  protection.  This  Article  leaves  the 
general  laws  undisturbed. 


328  THE  GERMAN  CONSTITUTION 


ARTICLE    136 

Civil  and  political  rights  and  duties  are  neither  conditioned  upon  nor 
limited  by  the  exercise  of  religious  liberty. 

The  enjoyment  of  civil  and  political  rights  as  well  as  eligibility  to 
public  office  is  independent  of  religious  belief. 

No  one  is  under  any  obligation  to  reveal  his  religious  convictions. 

The  authorities  have  a  right  to  inquire  about  religious  affiliation 
only  so  far  as  rights  and  duties  are  dependent  thereon  or  in  pursuance 
of  a  statistical  enumeration  prescribed  by  law. 

No  one  may  be  forced  to  attend  any  church  ceremony  or  festivity, 
to  take  part  in  any  religious  exercise,  or  to  make  use  of  any  religious 
oath. 

ARTICLE  137 

There  is  no  state  church. 

Freedom  of  association  in  religious  societies  is  guaranteed.  The 
combination  of  religious  societies  within  the  Commonwealth  is  not 
subject  to  any  limitations. 

Every  religious  society  regulates  and  administers  its  affairs  inde- 
pendently within  the  limits  of  the  general  law.  It  appoints  its  officers 
without  interference  by  the  state  or  the  civil  municipality. 

Rehgious  societies  maj^  be  incorporated  in  accordance  with  the 
general  provisions  of  the  civil  law. 

Existing  religious  societies  remain,  to  the  same  extent  as  heretofore, 
public  bodies  corporate.  The  same  rights  shall  be  accorded  to  other 
religious  societies  if  by  their  constitution  and  the  number  of  their 
members  they  offer  a  guaranty  of  permanence.  If  a  number  of  such 
public  religious  societies  unite,  this  union  is  also  a  public  body 
corporate. 

The  religious  societies,  which  are  recognized  by  law  as  bodies 
corporate,  are  entitled  on  the  basis  of  the  civil  tax  rolls  to  raise  taxes 
according  to  the  provisions  of  the  laws  of  the  respective  States. 

The  associations,  which  have  as  their  aim  the  cultivation  of  a 
system  of  ethics,  have  the  same  privileges  as  the  religious  societies. 

The  issuance  of  further  regulations  necessary  for  carrying  out  these 
provisions  comes  under  the  jurisdiction  of  the  States. 

ARTICLE   138 

State  contributions  to  religious  societies  authorized  by  law,  contract, 
or  any  special  grant,  will  be  commuted  by  State  legislation.  The 
general  principles  of  such  legislation  will  be  defined  by  the  Common- 
wealth. 


APPENDIX  329 


The  property  of  religious  societies  and  unions  and  other  rights  to 
their  cultural,  educational,  and  charitable  institutions,  foundations, 
and  other  possessions  are  guaranteed. 

ARTICLE  139 

Sundays  and  legal  holidays  remain  under  the  protection  of  law  as 
days  of  rest  and  spiritual  edification. 

ARTICXE  140 

The  members  of  the  armed  forces  shall  be  granted  the  necessary 
leave  for  the  performance  of  their  religious  duties. 

ARTICLE   141 

In  so  far  as  there  is  need  for  religious  services  and  spiritual  care 
in  hospitals,  prisons  or  other  public  institutions,  the  religious  societies 
shall  be  permitted  to  perform  the  religious  oflSces,  but  all  compulsion 
shall  be  avoided. 


SECTION  IV 
EDUCATION  AND  SCHOOLS 

ARTICLE   142 

Art,  science  and  the  teaching  thereof  are  free.  The  state  guarantees 
their  protection  and  takes  part  in  fostering  them. 

ARTICLE   143 

The  education  of  the  young  shall  be  provided  for  through  public 
institutions.  In  their  establishment  the  Commonwealth,  States  and 
municipalities  co-operate. 

The  training  of  teachers  shall  be  regulated  in  a  uniform  manner  for 
the  Commonwealth  according  to  the  generally  recognized  principles 
of  higher  education. 

The  teachers  in  the  public  pchools  have  the  rights  and  duties  of 
state  officers. 

ARTICIJB  144 

The  entire  school  system  is  under  the  supervision  of  the  sinto;  it 
may  grant  a  share  therein  to  the  municipalities.  The  Hupcr\*i.sioii  of 
schools  will  be  cxcrci.sed  by  trrhnically  trained  oflieera  who  must 
devote  their  time  principally  to  this  duty. 


330  THE  GERMAN  CONSTITUTION 


ARTICLE   145 

Attendance  at  school  is  obligatory.  This  obligation  is  discharged 
by  attendance  at  the  elementary  schools  for  at  least  eight  school  years 
and  at  the  continuation  schools  until  the  completion  of  the  eighteenth 
year.  Instruction  and  school  supplies  in  the  elementary  and  continua- 
tion schools  are  free. 

ARTICLE  146 

The  public  school  system  shall  be  systematically  organized.  Upon  a 
foundation  of  common  elementary  schools  the  sj'stem  of  secondary 
and  higher  education  is  erected.  The  development  of  secondary  and 
higher  education  shall  be  determined  in  accordance  with  the  needs  of 
all  kinds  of  occupations,  and  the  acceptance  of  a  child  in  a  particular 
school  shall  depend  upon  his  qualifications  and  inclinations,  not  upon 
the  economic  and  social  position  or  the  religion  of  his  parents. 

Nevertheless,  within  the  municipalities,  upon  the  petition  of  those 
entitled  to  instruction  common  schools  shall  be  established  of  their 
faith  or  ethical  system,  in  so  far  as  this  does  not  interfere  with  a 
system  of  school  administration  within  the  meaning  of  Paragraph  1. 
The  wishes  of  those  entitled  to  instruction  shall  be  considered  as  much 
as  possible.  Details  will  be  regulated  by  State  laws  in  accordance 
with  principles  to  be  prescribed  by  a  national  law. 

To  facilitate  the  attendance  of  those  in  poor  circumstances  at  the 
secondary  and  higher  schools,  public  assistance  shall  be  provided  by 
the  Commonwealth,  States,  and  municipalities,  particularly,  assistance 
to  the  parents  of  children  regarded  as  qualified  for  training  in  the 
secondary  and  higher  schools,  until  the  completion  of  the  training. 

ARTICLE   147 

Private  schools,  as  a  substitute  for  the  public  schools,  require  the 
approval  of  the  state  and  are  subject  to  the  laws  of  the  States. 
Approval  shall  be  granted  if  the  private  schools  do  not  fall  below  the 
public  schools  in  their  educational  aims  and  equipment  as  well  as  in 
the  scientific  training  of  their  teachers,  and  if  no  separation  of  the 
pupils  according  to  the  wealth  of  their  parents  is  fostered.  Approval 
shall  be  withheld  if  the  economic  and  legal  status  of  the  teachers  is 
not  sufficiently  assured. 

Private  elementary  schools  shall  be  only  permissible,  if  for  a 
minority  of  those  entitled  to  instruction  whose  wishes  are  to  be 
considered  according  to  Article  146,  Paragraph  2,  there  is  no  public 
elementary  school  of  their  faith  or  ethical  system  in  the  municipality, 


APPENDIX  331 


or  if  the  educational  administration  recognizes  a  special  pedagogical 
interest. 

Private  preparatory  schools  shall  be  abolished. 

The  existing  law  remains  in  effect  with  respect  to  private  schools 
which  do  not  serve  as  substitutes  for  public  schools. 

ARTICT£  148 

All  schools  shall  inculcate  moral  education,  civic  sentiment,  and 
personal  and  vocational  efficiency  in  the  spirit  of  German  national 
culture  and  of  international  conciliation. 

In  the  instruction  in  public  schools  care  shall  be  taken  not  to  hurt 
the  feelings  of  those  of  differing  opinion. 

Civics  and  manual  training  are  included  in  the  school  curriculum. 
Every  pupil  receives  a  copy  of  the  Constitution  on  completing  the 
obligatory  course  of  study. 

The  common  school  system,  including  university  extension  work, 
shall  be  cherished  by  the  Commonwealth,  States  and  municipalities. 

ARTICLE   149 

Religious  instruction  is  included  in  the  regular  school  curriculum, 
except  in  the  nonsectarian  (secular)  schools.  The  imparting  of  religious 
instruction  is  regulated  by  the  school  laws.  Religious  instruction  is 
imparted  in  accordance  with  the  principle  of  the  religious  society  con- 
cerned, without  prejudice  to  the  right  of  supervision  of  the  state. 

The  imparting  of  religious  instruction  and  the  use  of  ecclesiastical 
ceremonies  is  optional  with  the  teachers,  and  the  participation  of  the 
pupils  in  religious  studies  and  in  ecclesiastical  ceremonies  and  festivities 
is  left  to  the  decision  of  those  who  have  the  right  to  control  the 
religious  education  of  the  child. 

The  theological  faculties  in  the  universities  will  be  continued. 

ARTICLE  150 

The  artistic,  historical  and  natural  monuments  and  scenery  enjoy  the 
protection  and  care  of  the  state. 

The  prevention  of  the  removal  of  German  art  treasures  from  the 
country  is  i.  function  of  the  Commonwealth. 

SECTION  V 
ECONOMIC  LIFE 

ARTICLE    151 

The  regulation  of  economic  life  must  conform  to  the  principles  of 
justice,  with  the  object  of  assuring  humane  conditions  of  life  for  all. 


332  THE  GERMAN  CONSTITUTION 

Within  these  limits  the  economic  liberty  of  the  individual  shall  be 
protected. 

Legal  compulsion  is  permissible  only  for  safeguarding  threatened 
rights  or  in  the  service  of  predominant  requirements  of  the  common 
welfare. 

The  freedom  of  trade  and  industry  is  guaranteed  in  accordance  with 
the  national  laws. 

ARTICLE  152 

Freedom  of  contract  prevails  in  economic  relations  in  accordance 
with  the  laws. 

Usury  is  forbidden.  Legal  practices  which  conflict  with  good  morals 
are  void. 

ARTICLE    153 

The  right  of  private  property  is  guaranteed  by  the  Constitution.  Its 
nature  and  limits  are  defined  by  law. 

Expropriation  may  be  proceeded  with  only  for  the  benefit  of  the 
community  and  by  due  process  of  law.  There  shall  be  just  compen- 
sation in  so  far  as  is  not  otherwise  provided  by  national  law.  If 
there  is  a  dispute  over  the  amount  of  the  compensation,  there  shall  be 
a  right  of  appeal  to  the  ordinary  courts,  in  so  far  as  not  otherwise 
provided  by  national  law.  The  property  of  the  States,  municipalities, 
and  associations  of  public  utility  may  be  taken  by  the  Commonwealth 
only  upon  payment  of  compensation. 

Property-rights  imply  property-duties.  Exercise  thereof  shall  at 
the  same  time  serve  the  general  welfare. 

ARTICLE  154 

The  right  of  inheritance  is  guaranteed  in  accordance  with  the 
civil  law. 

The  share  of  the  state  in  inheritances  is  determined  in  accordance 
with  the  laws. 

ARTICLE   155 

The  distribution  and  use  of  the  land  is  supervised  by  the  state  in 
such  a  way  as  to  prevent  its  misuse  and  to  promote  the  object  of 
insuring  to  every  German  a  healthful  dwelling  and  to  all  German 
families,  especially  those  with  numerous  children,  homesteads  corre- 
sponding to  their  needs.  War-veterans  shall  receive  special  considera- 
tion in  the  enactment  of  a  homestead  law. 

Landed  property,  the  acquisition  of  which  is  necessary  to  satisfy  the 
demand  for  housing,  to  promote  settlement  and  reclamation,   or  to 


APPENDIX  333 


improve  agriculture,  may  be  expropriated.  Entailments  shall  be 
dissolved. 

The  cultivation  and  utilization  of  the  soil  is  a  duty  of  the  land- 
owner toward  the  community.  An  increase  of  the  value  of  land  arising 
without  the  application  of  labour  or  capital  to  the  property  shall  inure 
to  the  benefit  of  the  community  as  a  whole. 

All  mineral  resources  and  all  economically  useful  forces  of  nature 
are  subject  to  the  control  of  the  state.  Private  royalties  shall  be 
transferred  to  the  state,  as  may  be  provided  by  law. 

ARTICLE  156 

The  Commonwealth  may  by  law,  without  impairment  of  the  right 
to  compensation,  and  with  a  proper  application  of  the  regulations 
relating  to  expropriation,  transfer  to  public  ownership  private  business 
enterprises  adapted  for  socialization.  The  Commonwealth  itself,  the 
States,  or  the  municipalities  may  take  part  in  the  management  of 
business  enterprises  and  associations,  or  secure  a  dominating  influence 
therein  in  any  other  way. 

Furthermore,  in  case  of  urgent  necessity  the  Commonwealth,  if  it  is 
in  the  interest  of  collectivism,  may  combine  by  law  business  enterprises 
and  associations  on  the  basis  of  administrative  autonomy,  in  order  to 
insure  the  co-operation  of  all  producing  elements  of  the  people,  to 
give  to  employers  and  employés  a  share  in  the  management,  and  to 
regulate  the  production,  preparation,  distribution,  utilization  and 
pecuniary  valuation,  as  well  as  the  import  and  export,  of  economic 
goods  upon  collectivistic  principles. 

The  co-operative  societies  of  producers  and  of  consumers  and  asso- 
ciations thereof  shall  be  incorporated,  at  their  request  and  after 
consideration  of  their  form  of  organization  and  peculiarities,  into  the 
system  of  collectivism. 

ARTICLE  157 

Labour  is  under  the  special  protection  of  the  Commonwealth. 
The  Commonwealth  will  adopt  a  uniform  labour  law. 

ARTICLE   158 

Intellectual  labour,  the  rights  of  the  author,  the  inventor  and  tlie 
artist  enjoy  the  protection  and  care  of  the  Commonwealth. 

The  products  of  German  scholarship,  art,  and  tochnica!  .scifnce 
shall  also  be  recognized  and  protected  abroad  through  international 
agreement. 


334  THE  GERMAN  CONSTITUTION 

ARTICLE   159 

The  right  of  combination  for  the  protection  and  promotion  of  labour 
and  economic  conditions  is  guaranteed  to  everybody  and  to  all 
professions.  All  agreements  and  measures  which  attempt  to  limit  or 
restrain  this  liberty  are  unlawful. 


ABTICLE  160 

Any  one  employed  on  a  salary  or  as  a  wage-earner  has  the  right 
to  the  leave  necessary  for  the  exercise  of  his  civil  rights  and,  so  far 
as  the  business  is  not  substantially  injured  thereby,  for  performing  the 
duties  of  public  honorary  offices  conferred  upon  him.  To  what  extent 
his  right  to  compensation  shall  continue  will  be  determined  by  law. 


ABTICLE  161 

For  the  purpose  of  conserving  health  and  the  ability  to  work,  of 
protecting  motherhood,  and  of  guarding  against  the  economic  effects 
of  age,  invalidity  and  the  vicissitudes  of  life,  the  Commonwealth  will 
adopt  a  comprehensive  system  of  insurance,  in  the  management  of 
which  the  insured  shall  predominate. 


ARTICLE  162 

The  Commonwealth  commits  itself  to  an  international  regulation 
of  the  legal  status  of  the  workers,  which  shall  strive  for  a  standard 
minimum  of  social  rights  for  the  whole  working  class  of  the  world. 


ARTICLE  163 

Every  German  has,  without  prejudice  to  his  personal  liberty,  the 
moral  duty  so  to  use  his  intellectual  and  physical  powers  as  is  de- 
manded by  the  welfare  of  the  community. 

Every  German  shall  have  the  opportunity  to  earn  his  living  by 
economic  labour.  So  long  as  suitable  employment  can  not  be  procured 
for  him,  his  maintenance  will  be  provided  for.  Details  will  be  regu- 
lated by  special  national  laws. 


APPENDIX  335 


ARTICLE   164 

The  independent  agricultural,  industrial,  and  commercial  middle 
class  shall  be  fostered  by  legislation  and  administration,  and  shall  be 
protected  against  oppression  and  exploitation. 

ARTICLE  165 

Wage-earners  and  salaried  employés  are  qualified  to  co-operate  on 
equal  terms  with  the  employers  in  the  regulation  of  wages  and  working 
conditions,  as  well  as  in  the  entire  economic  development  of  the  pro- 
ductive forces.  The  organizations  on  both  sides  and  the  agreements 
between  them  will  be  recognized. 

The  wage-earners  and  salaried  employés  are  entitled  to  be  repre- 
sented in  local  workers'  councils,  organized  for  each  establishment  in 
the  locality,  as  well  as  in  district  workers'  councils,  organized  for  each 
economic  area,  and  in  a  National  Workers'  Council,  for  the  purpose 
of  looking  after  their  social  and  economic  interests. 

The  district  workers'  councils  and  the  National  Workers'  Council 
meet  together  with  the  representatives  of  the  employers  and  with 
other  interested  classes  of  people  in  district  economic  councils  and  in 
a  National  Economic  Council  for  the  purpose  of  performing  joint 
economic  tasks  and  co-operating  in  the  execution  of  the  laws  of 
socialization.  The  district  economic  councils  and  the  National  Eco- 
nomic Council  shall  be  so  constituted  that  all  sub.^tantial  vocational 
groups  are  represented  therein  according  to  their  economic  and  social 
importance. 

Drafts  of  laws  of  fundamental  importance  relating  to  social  and 
economic  policy  before  introduction  [into  the  National  Assembly] 
shall  be  submitted  by  the  National  Cabinet  to  the  National  Economic 
Council  for  consideration.  The  National  Economic  Council  has  the 
right  itself  to  propose  such  measures  for  enactment  into  law.  If  the 
National  Cabinet  does  not  approve  them,  it  .shall,  ncvertholcs.", 
introduce  them  into  the  National  Assembly  together  with  a  statement 
of  its  own  position.  The  National  Economic  Council  may  have  its 
bill  presented  by  one  of  its  own  members  before  the  National  Assembly. 

Supervisory  and  administrative  functions  may  be  delegated  to  the 
workers'  councils  and  to  the  economic  councils  within  their  respective 
areas. 

The  regulation  of  the  organization  and  duties  of  the  workers'  councils 
and  of  the  economic  councils,  as  well  as  their  relation  to  oilier  social 
bodies  endowed  with  administrative  autonomy,  is  exclusively  a  func- 
tion of  the  Commonwealth. 


336  THE  GERMAN  CONSTITUTION 

SECTION  VI 
TRANSITIONAL  AND  FINAL  PROVISIONS 

ABTICLE   166 

Until  the  establishment  of  the  National  Administrative  Court,  the 
National  Judicial  Court  takes  its  place  in  the  organization  of  the 
Electoral  Commission. 

ARTICLE   167 

The  provisions  of  Article  18,  Paragraphs  3  to  6,  become  effective  two 
years  after  the  promulgation  of  the  national  Constitution. 

ARTICLE  168 

Until  the  adoption  of  the  State  law  as  provided  in  Article  63, 
but  at  the  most  for  only  one  year,  all  the  Prussian  votes  in  the 
National  Council  may  be  cast  by  members  of  the  State  Cabinet. 

ARTICLE  169 

The  National  Cabinet  will  determine  when  the  provisions  of  Article 
83,  Paragraph  1,  shall  become  effective. 

Temporarily,  for  a  reasonable  period,  the  collection  and  adminis- 
tration of  customs-duties  and  taxes  on  articles  of  consumption  may  be 
left  to  the  States  at  their  discretion. 

ARTICLE   170 

The  Postal  and  Telegraphic  Administrations  of  Bavaria  and 
Wurtemberg  will  be  taken  over  by  the  Commonwealth  not  later  than 
April  1,  1921. 

If  no  understanding  has  been  reached  over  the  terms  thereof  by 
October  1,  1920,  the  matter  will  be  decided  by  the  Supreme  Judicial 
Court. 

The  rights  and  duties  of  Bavaria  and  Wurtemberg  remain  in  force 
as  heretofore  until  possession  is  transferred  to  the  Commonwealth. 
Nevertheless,  the  postal  and  telegraphic  relations  with  neighbouring 
foreign  countries  will  be  regiilated  exclusively  by  the  Commonwealth. 


APPENDIX  337 


ARTICLE   171 

The  state  railroads,  canals  and  aids  to  navigation  will  be  taken 
over  by  the  Commonwealth  not  later  than  April  1,  1921. 

If  no  understanding  has  been  reached  over  the  terms  thereof  by 
October  1,  1920,  the  matter  will  be  decided  by  the  Supreme  Judicial 
Court. 

ARTICLE  172 

Until  the  national  law  regarding  the  Supreme  Judicial  Court  becomes 
effective  its  powers  will  be  exercised  by  a  Senate  of  seven  members, 
four  of  whom  are  to  be  elected  by  the  National  Assembly  and  three 
by  the  National  Judicial  Court,  each  choosing  among  its  own  members. 
The  Senate  will  regulate  its  own  procedure. 


ARTICLE  173 

Until  the  adoption  of  a  national  law  according  to  Article  138,  the 
existing  state  contributions  to  the  religious  ôocieties,  whether  author- 
ized by  law,  contract  or  special  grant,  will  be  continued. 


ARTICLE   174 

Until  the  adoption  of  the  national  law  provided  for  in  Article  146, 
Paragraph  2,  the  existing  legal  situation  will  continue.  The  law  shall 
give  special  consideration  to  parts  of  the  Commonwealth  where 
provision  for  separate  schools  of  different  religious  faiths  is  not  now 
made  by  law. 

ARTICI^  175 

The  provisions  of  Article  109  do  not  apply  to  orders  and  decorations 
conferred  for  services  in  the  war-years  1914-1919. 


a;{Ticle  176 

All  public  officers  and  members  of  the  arrnrd  forces  shall  be  sworn 
upon  this  Constitution.  Details  will  be  regulated  by  order  of  the 
National  President. 


338  THE  GERMAN  CONSTITUTION 


ARTICLE    177 

Wherever  by  existing  laws  it  is  provided  that  the  oath  be  taken  in 
the  form  of  a  religious  ceremony,  the  oath  may  be  lawfully  taken  in 
the  form  of  a  simple  affirmation  by  the  person  to  be  sworn:  "I  swear." 
Othenvise  the  content  of  the  oath  provided  for  in  the  laws  remains 
unaltered. 

ARTICLE    178 

The  Constitution  of  the  German  Empire  of  April  16,  1871,  and  the 
law  of  February  10,  1919,  relating  to  the  provisional  government  of 
the  Commonwealth,  are  repealed. 

The  other  laws  and  regulations  of  the  Empire  remain  in  force,  in  so 
far  as  they  do  not  conflict  with  this  Constitution.  The  provisions  of 
the  Treaty  of  Peace  signed  on  June  28,  1919,  at  Versailles,  are  not 
affected  by  the  Constitution. 

Ofiicial  regulations,  legally  issued  on  the  authority  of  laws  heretofore 
in  effect,  retain  their  validity  until  superseded  by  other  regulations 
or  legislation. 

ARTICLE  179 

In  so  far  as  reference  is  made  in  laws  or  executive  orders  to  pro- 
visions and  institutions  which  are  abolished  by  this  Constitution,  their 
places  are  taken  by  the  corresponding  provisions  and  institutions  of 
this  Constitution.  In  particular,  the  National  Assembly  takes  the 
place  of  the  National  Convention,  the  National  Council  that  of  the 
Committee  of  the  States,  and  the  National  President  elected  by 
authority  of  this  Constitution  that  of  the  National  President  elected 
by  authority  of  the  law  relating  to  the  provisional  government. 

The  power  to  issue  executive  orders,  conferring  upon  the  Committee 
of  the  States  in  accordance  with  the  provisions  heretofore  in  effect,  is 
transferred  to  the  National  Cabinet;  in  order  to  issue  executive  orders 
it  requires  the  consent  of  the  National  Council  in  accordance  with 
the  provisions  of  this  Constitution. 

ARTICLE  180 

Until  the  convening  of  the  first  National  Assembly,  the  National 
Convention  will  function  as  the  National  Assembly.  Until  the  in- 
auguration of  the  first  National  President  the  office  will  be  filled  by  the 
National  President  elected  by  authority  of  the  law  relating  to  the 
provisional  government. 


APPENDIX  339 


ARTICLE   181 

The  German  People  have  ordained  and  established  this  Constitution 
by  their  National  Convention.  It  goes  into  effect  upon  the  day  of  its 
promulgation. 

SCHWARZBUBG,  AugUSt   11,  1919 

(Signed) 

The  National  President 
EBERT 

The  National  Cabinet 
BAUER 
ERZBERGER  HERMANN  MULLER  DR.  DAVID 

NOSKE         SCHMIDT        SCHLICKE        GIESBERTS 
DR.  MAYER  DR.  BELL 


Il  I, 
3 


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